Prisons: Children of Prisoners
 - Question

Bishop of Gloucester: To ask Her Majesty’s Government what action they are taking to support the children of prisoners.

Baroness Vere of Norbiton: My Lords, having a parent in custody can have a very significant impact on a child. We must understand the diverse needs of these vulnerable children and provide the necessary support. For example, recent government reforms mean that prison governors now have the budget and the flexibility to commission family services that work for their prisons and in their communities.

Bishop of Gloucester: In 95% of cases where a mother receives a custodial sentence, a child has to move home. Unlike a child in care who moves home, the child of someone in custody has no guarantee of a place at the local school, and the person looking after that child receives no financial support. Will the Minister commit to identifying children of those in custody as a specific group, and ensuring that they and their carers receive the necessary support?

Baroness Vere of Norbiton: I thank the right reverend Prelate for raising this. I managed to speak to her, literally a few minutes before I rose to answer the Question, and I was surprised, as I am sure noble Lords will also be, that that is the case. My information is that families who look after such children, whether they are carers from the same family or non-family carers, are eligible for the same benefits as they would get if they were the parents of the child—child benefit, child tax credits and so on. Indeed, they may also get other funding under Section 17 of the Children Act. I would like to investigate this further and write to the right reverend Prelate. I will, of course, put a copy in the Library, because this is a very important issue.

Baroness Bloomfield of Hinton Waldrist: My Lords, almost exactly a year ago we debated the excellent Farmer review on this very subject. Can the Minister report on the progress, if any, on developing links between prisons and communities, which benefit the children of all prisoners, and on technology such as tele-visiting arrangements, for maintaining prisoner-child contact?

Baroness Vere of Norbiton: I share the noble Baroness’s appreciation for the work of my noble friend Lord Farmer, and we are making good progress in going through  his 19 recommendations and ensuring that they are implemented. One of those recommendations was the introduction of new family service contracts for prison  governors, which, as I mentioned, has already happened. We are trying to create outward-looking prisons so that our empowered governors go into the community and look at what is available there, whether that be third sector groups or other service provision, and use what is available locally to ensure that prisoners have contact with their families, and also the employment skills and training they need to make a successful future.

Baroness Corston: My Lords, I hope the Minister will visit some women’s prisons. A short time ago the Justice Secretary, David Gauke, announced that there would be a presumption against sentences of less than 12 months. The overwhelming majority  of women in our prisons are there for far less than 12 months; indeed, two years ago 271 of them served sentences of two weeks. This break between mother and child is catastrophic, and frequently there is no family reunion. What progress is being made to ensure that we do not have these short sentences?

Baroness Vere of Norbiton: The noble Baroness is completely right, in that short sentences for men or women are a significant factor in family breakdown. The Lord Chancellor has made it very clear that he wants to see the number of short-term sentences decline. That of course depends on the independent judiciary and the sentences that they hand out, but there is lots that the Government can do. We are ensuring that the National Probation Service pre-sentencing report includes information on dependants. If that information is in the pre-sentencing report, the judge sees it and can then use it as a mitigating factor in the sentence that gets handed down. Furthermore, we are rolling out an excellent piece of work by Dr Shona Minson, Safeguarding Children when Sentencing Mothers. That is important work and we need to get that message out there, but at the end of the day it will be up to our independent judiciary to hand down sentences.

Baroness Burt of Solihull: My Lords, it is estimated that over 200,000 children are affected by parental imprisonment across the UK. We do not know the actual number because neither the courts nor local services routinely ask them. These children are left in the shadows, their needs often forgotten, with devastating impacts. Despite their situation, they are locked out of the support that they need to get a better chance in life. Will the Minister heed Barnardo’s call for the Government to appoint a lead Minister to oblige the courts to ask about the children of people being sent to prison and ensure that adequate childcare and support arrangements are in place?

Baroness Vere of Norbiton: My Lords, this is a very complicated area. The noble Baroness is not quite right: we do encourage courts to ask defendants, whether they are male or female, whether they have dependent children. What happens is that some mothers, in particular, fear that their child might then be taken into care, and they may well have made their own informal arrangements for that child and therefore think, “Actually, I’m not disclosing that I have children”. It is therefore very difficult for us to pick up that information.
The noble Baroness mentioned Barnardo’s. I pay tribute to the work that it has done on the National Information Centre on Children of Offenders, a comprehensive website that was launched in May this year so that all government agencies, both nationally and locally, can find out best practice and work out the diverse needs of these very vulnerable children.

Lord Laming: My Lords, does the Minister agree that one of the reasons why we have these very short sentences of two weeks and the like is that the courts appear to have lost confidence in the non-custodial arrangements that have been made, particularly given the decline in the standing of the probation service? What steps are being taken to recover the position of probation supervision?

Baroness Vere of Norbiton: The noble Lord is right that there has been a move away from community sentences, which perhaps has been because the quality has not been there. However, we are turning that around. We are looking at improving the provision of mental health, alcohol and drugs treatment locally, so that court-ordered treatment can run alongside community sentences. On the point about probation, we have re-established the National Sentencer Probation Forum, in which people who hand out sentences and the probation service can discuss what issues need to be sorted out to ensure that the provisions are there for these community-based sentences. I think all noble Lords will agree with me that the more that we can use them, the better for all involved.

Baroness Massey of Darwen: My Lords, are the Government supporting parenthood programmes for prisoners? I believe that some are very effective. Can the Minister say whether there is support for them, and whether will they expand?

Baroness Vere of Norbiton: I would be very happy to talk further on that matter. For example, in women’s prisons the family services contract has gone out to a single contractor called Pact, and there are lots of opportunities for families to learn together, along with homework clubs. The noble Baroness mentioned parenting. There are parenting skills classes, which often involve constructive whole-day family days through which the families of mothers in prison can get together and learn together. These appear to be working very well.

Railways: East Coast Main Line
 - Question

Lord Beith: To ask Her Majesty’s Government when new trains will be in service on the East Coast Main line between Newcastle and Edinburgh.

Baroness Sugg: My Lords, passengers across the east coast main line, including in Newcastle and Edinburgh, will benefit from the introduction of new trains by London North Eastern Railway, delivered through the Government-led intercity express programme. These new trains will transform passenger journeys, providing more seats, more frequent services and faster journeys. LNER is working closely with Hitachi Rail Europe, Network Rail and other industry partners to bring these trains into service as soon as possible, with a full rollout scheduled to be complete by 2020.

Lord Beith: My Lords, the noble Baroness did not say very much about when these particular sections of the line will have the service. Because these new trains apparently interfere with the outdated signalling and points system on the east coast main line—and also, bizarrely, because the regulator thinks people might use the interconnecting things to climb on top of the trains—the introduction north of York has been delayed. In what year will each of these sections of the line get new trains, and for how long will  the service depend on worn-out HST trains which are 40 years old?

Baroness Sugg: My Lords, I am happy to give some more information on the timings. The first trains were due to enter service in December this year, but LNER has recently announced that these will not be introduced until early next year. There remain challenges relating to electromagnetic capability, ORR approvals and train design. Of course, this is disappointing for all involved, but when introduced the trains will provide more seats and faster journeys. As I said, the full rollout of the east coast fleet is still scheduled for completion in 2020.

Baroness McIntosh of Pickering: My Lords, my noble friend will be aware of my interest in this. I congratulate the Government on their involvement in this programme. Can my noble friend put a date on when the trains will actually run the full route to London? How will this coincide with the improvements to King’s Cross station that have been announced?

Baroness Sugg: My Lords, I am afraid that I am not able to give a definite date. We are trying to introduce the trains as soon as possible, but there remain issues that we need to work through. LNER has said that it hopes to start introducing the trains early next year. On my noble friend’s point about King’s Cross, we are carrying out essential works on King’s Cross to replace the expired track and signalling to ensure that we can see the full benefits of the east coast main line enhancements.

Lord Rosser: It was from the government Dispatch Box that we were told on 23 May this year that:
“The good news also is that we fully expect the new intercity express trains to be introduced on the east coast main line from the end of this year, as planned”.—[Official Report, 23/5/18; col. 1032.]
Is this episode yet another example of the reality that, in our fragmented railway system, no one is in overall charge? No one is ultimately accountable for  the performance or lack of it of our national railway network and, as a result, no one accepted responsibility for ensuring that the new trains would start running on the planned date. If the Government disagree that that is the case, then which individual or body was accountable for ensuring that the new trains would start running on the planned date on the east coast main line?

Baroness Sugg: Well, that was not me. The noble Lord is quite right to say that in May I gave reassurance that those trains would come into service. At the time, that was very much what we were planning. However, as I said, there have been emerging issues on that which we need to work through. It is not unusual with delivery of a whole new infrastructure—and this is a £2.7 billion investment, which we should welcome—that there are some compatibility issues. We are working through them. On the noble Lord’s point about the rail system, it has been well over a decade since we have seen a large change in the rail network and, while we have seen record private investment and the doubling of passenger journeys, of course it has had its challenges. The time is absolutely right for a comprehensive review, and that is what the rail review will do.

Lord Cormack: My Lords, I thank my noble friend for the help that she has given in recent weeks to try to ensure that we have a happy resolution to the better, promised service—I repeat promised service—between Lincoln and London. Is she confident that she will be able to join me on one of those trains during the course of 2019 with those colleagues from all parts of the House who have already accepted my invitation?

Baroness Sugg: My Lords, we have discussed this specific service many times, and I know that it will disappoint my noble friend, as it does me, that we are unable to guarantee that those services will be introduced in May 2019—and I am not able to give an exact date either. I know that that will also disappoint the people of Lincoln because those extra services will enable more people to visit that great city. However, I can absolutely reassure my noble friend that both LNER and the Government are committed to more trains to Lincoln and we will deliver them as soon as possible.

Lord Steel of Aikwood: My Lords, next year, when the new sleeping cars are reintroduced to the railways, will they be run on the east coast line to Scotland as well as the west coast line?

Baroness Sugg: There are some issues with trains to Scotland at the moment, so I am afraid that I am unable to give that guarantee. We are working very closely with the Scottish Government to deliver that.

Lord Watts: My Lords, how can the Secretary of State keep his job? What has happened to ministerial accountability for this shambles?

Baroness Sugg: My Lords, we are overseeing, as I have said many times, record investment in our railways: £48 billion over 2019 to 2024. Obviously, with all these   improvements, that has given us challenges, but we should not lose sight of the benefits that are being seen through this investment. The Azuma trains alone will have 15% greater capacity, and once the full fleet is in service they will deliver a 28% increase in morning peak services. There will be improvements in accessibility, and they will be more reliable, with more storage room. That is what we should aim for.

Baroness Brinton: My Lords, the Azuma train appears to have fewer disabled spaces than the current high-speed trains. Can the Minister confirm that first, that will be rectified, and secondly, that passengers will not be able to store suitcases in the wheelchair spaces? Becky Whitworth could not get on a train because the entire space was filled with cases.

Baroness Sugg: My Lords, I understand that the new trains will have improvements in accessibility, with more wheelchair spaces, which will not include flip chairs. There will also be universally accessible toilets. However, I will write to the noble Baroness on her specific question.

Health: Spectrum Conditions
 - Question

Lord Addington: To ask Her Majesty’s Government what assessment they have made of the importance of identification of spectrum conditions, such as dyslexia, ADHD and dyspraxia, on (1) educational, and (2) other life outcomes.

Lord Addington: My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and remind the House of my declared interest as president of the British Dyslexia Association.

Lord Agnew of Oulton: My Lords, our data collections do not separate outcomes of dyslexia, ADHD and dyspraxia, so we are unable to make such an assessment. In terms of destinations, after completing key stage 4, for those with SEN, overall in 2016-17, 90% of pupils with a statement or education, health and care plan were in sustained education, employment or training compared to 88% of pupils with SEN without statements, and 95% of those without SEN.

Lord Addington: I thank the Minister for that reply. I have made him and his office aware of the document brought forward in February this year by Warwickshire Educational Psychology Service, called Teaching Children & Young People with Literacy Difficulties Practice Guidance, which is very similar to a document that appears on the Staffordshire site. This states that dyslexia effectively is not something to worry about. It effectively undermines the whole basis of the support which the noble Lord has been talking about. Will he give an assurance that the Government will make sure that  accurate diagnosis, which can be life-changing, is maintained for this group because it helps through education and throughout life?

Lord Agnew of Oulton: My Lords, the document to which the noble Lord refers recognises that early identification and intervention is important to meet the needs of children and young people with literacy delays. On the necessity of a dyslexia diagnosis, I do not have expertise in such matters. However, the noble Lord and the British Dyslexia Association do, and I would encourage Warwickshire local authority to consider carefully its advice on this point, and on the document generally. I share the noble Lord’s frustration that it has not responded to the British Dyslexia Association’s letter written over two and a half months ago.

Lord Winston: My Lords, I am astonished that the Government do not know the figures for the relative incidence of the spectrum disorders in schools. I declare an interest as a member of staff of Imperial College. Is the Minister aware of our programme where we have managed, hugely successfully, to encourage dyslexic students, in particular, to gain very high educational qualifications? But of course, if the condition cannot be identified, it is very difficult to do that.

Lord Agnew of Oulton: My Lords, I acknowledge the great work the noble Lord, Lord Winston, is doing. I am clear that early diagnosis makes a huge difference; it helps the self-esteem of the child in question, and also enables earlier interventions to take place, helping to establish that child on a strong educational pathway.

Lord Forsyth of Drumlean: My Lords, does my noble friend accept that dyslexia is an impairment that can result in substantial and adverse long-term effects on an individual and their ability to carry out normal, day-to-day activities, and therefore this report is in complete contrast to the legislation that this House has passed?

Lord Agnew of Oulton: My Lords, it is certainly not helpful that Warwickshire County Council is not engaging with the British Dyslexia Association. Under the Equality Act 2010, a person has a disability,
“if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities”.

Lord Watson of Invergowrie: My Lords, this is not a party-political issue, and I acknowledge that the Minister made time last week, along with the noble Lords, Lord Addington and Lord Storey, to discuss Warwickshire County Council’s guidance with me. That is why the Minister’s words today are disappointing, because I had understood that he accepted that this was an urgent and serious issue. Warwick County Council’s guidance to parents ignores the science and refuses to recognise that dyslexia is a medical condition. One wonders if, perhaps, it has also advised their residents that the earth is actually flat and that there is no such thing as global warming.   With Cambridgeshire County Council and Staffordshire County Council considering aligning themselves with Warwickshire County Council’s position, I think it is important that the Government set out what action they will take to ensure that this misguided guidance is withdrawn as a matter of urgency.

Lord Agnew of Oulton: My Lords, I share the concern of the noble Lord, Lord Watson, and I have offered to write to Warwickshire County Council to understand why it has not responded to the British Dyslexia Association’s very detailed and well-written letter, sent two and a half months ago. As I said, we recognise the issue of dyslexia. Many children and young people who have SEN may have a disability under the Equality Act, and as I said, we strongly believe in early diagnosis and early intervention.

Lord Sterling of Plaistow: My Lords, my grandson—a splendid little boy—is on the spectrum. Only yesterday, we had a meeting with the Minister on the subject of early identification of this problem. There is no doubt about it: the earlier it can be identified the better for everybody, as it gives children a chance to participate in life in a normal way. What was lacking, as many of us here know, is child psychologists. Without many more child psychologists we do not have the ability to identify problems early, and I hope that the Minister, who I know has huge empathy for this subject, might hasten to add to that voice.

Lord Agnew of Oulton: My Lords, I am not sure whether the noble Lord, Lord Sterling, was referring to dyslexia or autism, but he will be aware that we have increased awareness among all schools, and encouraged teachers to increase their awareness. With the Autism Education Trust, for example, we have rolled out a lot of autism awareness training. We now have 190,000 people trained in autism awareness, which is up from 150,000 in June of last year.

Lord Storey: My Lords, the Minister will recall that during Children and Families Act, the local offer required local authorities to give information about special needs provision, and that information has to be accurate. Does the Minister not agree that it is not helpful to parents when false information is given out by councils, particularly on this issue of dyslexia? Will the Government clarify whether they fully support the recognition of dyslexia as a disability as defined by the Equality Act 2010?

Lord Agnew of Oulton: My Lords, the Equality Act 2010 provides protection for any person with a condition that meets the Act’s definition of disability—that is, a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The Act does not, except in a few specific instances, mention by name the conditions that automatically fall within the definition of disability. This is because, in most cases, it is the impact on the person’s life that is the qualifying criterion, rather than the condition itself.

Gambling: Fixed-odds Betting Machines
 - Question

Lord Griffiths of Burry Port: To ask Her Majesty’s Government whether they will introduce legislation to reduce the maximum bet for fixed-odds betting machines to £2; and if so, when.

Viscount Younger of Leckie: My Lords, as announced in May 2018, the Government will introduce legislation to reduce the maximum stake for B2 gaming machines, also known as fixed-odds betting terminals, from £100 to £2. The Chancellor of the Exchequer confirmed in yesterday’s Budget that the new stake limits will come into effect when the remote gaming duty is increased to 21% in October 2019.

Lord Griffiths of Burry Port: My Lords, I find it difficult to thank the Minister for that reply. The need was felt and identified, a consultation period was held, results were published, and an impact assessment was brought forward. When the Government announced their readiness to reduce the stakes from £100 to £2 there was universal light shed on a very dark area of British national life, including among members of his own Government.
This is a victory for the bookies. What are their lobbying powers with the Treasury that they have been able to eke this process out to suit their needs and to make huge profits from the results of their endeavours? How can they do that when they disingenuously argue that it takes time to change the machines, even though the evidence shows that they can be changed very quickly? There are too many questions but the overriding one is: why? The Minister is an honourable man. Would he not prefer to be on this side with me, asking the Government that question?

Viscount Younger of Leckie: My Lords, I am happy to give an answer. We have never said exactly when this would come into force.

Oh!

Viscount Younger of Leckie: It is true. I am delighted that, along with the excellent list of other good news that came out of the Budget yesterday, we are now able to provide clarity on the reduction to £2, which will help to stop extreme losses for those who can least afford them. The answer to the noble Lord’s question about why is to allow enough time for businesses to readjust. We are talking about a good number of jobs here. The Association of British Bookmakers has ascertained that there are about 21,000 jobs and 4,500 businesses. We think that that is a slight exaggeration, but we are talking about big numbers.

Lord Alton of Liverpool: My Lords, I refer the Minister to a reply he gave, on the last occasion the House discussed this, about the targeting of gambling  at children and young people. In particular, the development of virtual reality games such as Fortnite, which is specifically targeted at young people, makes the idea of gambling normal. Will he also say a word about the contribution that the gambling companies to which he referred are supposed to make through the levy, to help people who become addicted? As many of them do not pay the voluntary levy, when do the Government intend to make it compulsory?

Viscount Younger of Leckie: As I have said in the Chamber before, we do not intend to make it compulsory. The voluntary system is working well at the moment, but we always keep it under review. The resources that we receive through the levy go towards helping problem gambling. The noble Lord made an extremely important point about the need to protect children. Problem gambling has remained consistently below 1% of the adult population for many years. Much work focused on children is going on, particularly with GambleAware. About two months ago, I noticed in the papers that a well-known TV personality took a machine from her son and smashed it against a table leg. In other words, parents need to take control and make sure that children do not spend too much time on these machines.

Bishop of St Albans: Many of us who have been speaking and campaigning on this issue were appalled yesterday to hear about the further time that it will take to implement this. These machines are predominantly found in the poorest areas. The research is quite clear: they cause huge poverty. On top of that, it is estimated that every day between one and two people commit suicide for gambling-related reasons. That is not only a huge social cost; it is a massive financial cost, far more than the £400 million relevant tax revenue that Her Majesty’s Government receive each year. Surely it is time to do this for the sake of everyone in our country.

Viscount Younger of Leckie: I note what the right reverend Prelate says, but coming to this decision was a result of much cross-departmental work and liaison with the industry. Now is the time for clarity, which we have given, and we need to go ahead. We expect the companies to implement this by the date that we have given.

Lord Storey: My Lords, the Minister talks about jobs and businesses, but what about the thousands of young people who become addicted to gambling? What about the 500 suicides? Does the Minister not think it is time to look at the whole issue of television advertising, which the noble Lord, Lord Alton, mentioned? Young men are seen regularly in betting adverts during the cricket, and football players have betting companies’ logos on their shirts. Is it not time that we regulated the industry and looked again at a review of gambling?

Viscount Younger of Leckie: I answered the question from the noble Lord, Lord Alton, about whether the levy was mandatory or voluntary. The Government take suicide prevention extremely seriously and much  work is being done, particularly with the National Health Service. Support is available. GamCare provides the national gambling helpline and a national network of counselling services. It is very important that we run this in parallel with the lead-up to the date that we bring in this change to the fixed-odds terminals.

Lord Naseby: My Lords, my noble friend says that it is going to take another year and, as we understand from the Chancellor, there may be a Budget in the spring. Did my noble friend listen to the strong feeling of, I suspect, almost everybody in this Chamber today? Perhaps it would be possible in such a Budget to implement what should happen.

Viscount Younger of Leckie: I will certainly take the noble Lord’s comments back, but the date is fixed.

Greater Manchester Combined Authority (Adult Education Functions) Order 2018
 - Motions to Approve

Moved by Lord Agnew of Oulton
That the draft Orders laid before the House on 23 July be approved. Considered in Grand Committee on 24 October.
Motions agreed.

Mental Health Units (Use of Force) Bill
 - Third Reading

Motion

Moved by Baroness Massey of Darwen
That the Bill do now pass.

Baroness Massey of Darwen: My Lords, in moving that the Bill do now pass, I should like to sincerely thank several people, including the Minister and his counterpart in the other place, Jackie Doyle-Price MP, who have been so supportive and helpful on the Bill. I also thank the voluntary sector, which has been incredibly vigorous and thorough in making sure that the Bill is as close to perfect as it can be. Will the Minister confirm that there will be other, informal, meetings on the Bill, which will look at the guidance to the Bill, particularly on statistics, impact and measurements? I wish to say that the Bill should now pass.

Lord O'Shaughnessy: I am very grateful to the noble Baroness for her question and, more importantly, for her steering the Bill to this point. I offer my thanks to her, her colleague Steve Reed in the other place and everybody who has been involved in this important piece of legislation. As she will know, my honourable friend Jackie Doyle-Price, the Minister for Mental Health, committed to the Government publishing statutory guidance within 12 months of the Bill being passed. I am happy to confirm to the noble Baroness that, in developing this guidance, the department will establish and consult an expert reference group, which will include experts on restrictive intervention as well as people with lived experience and, furthermore, that public consultation will take place before the publication of the final guidance. So I can absolutely reassure the noble Baroness and all noble Lords that we will consult widely with a broad set of stakeholders, as well as reflecting discussions in this House and the other place, to make sure that all those contributions are included in the guidance.
Bill passed.

Northern Ireland (Executive Formation and Exercise of Functions) Bill
 - Second Reading

Moved by Lord Duncan of Springbank
That the Bill be now read a second time.
Relevant Documents: 15th Report from the Constitution Committee, 36th and 37th Reports from the Delegated Powers Committee

Lord Duncan of Springbank: My Lords, as I have said on many occasions, the Government remain emphatic in their support and advocacy of the Belfast agreement. The beating heart of the Belfast agreement is a devolved power-sharing Executive Government, and for that reason the restoration of a devolved power-sharing Executive is our top priority. Much to our regret, and despite our best efforts, there remains no devolved government in Northern Ireland. I believe we all share   a common view that this is not good, particularly at this serious and important time. Let there be no doubt: the people of Northern Ireland need and deserve a devolved Government—a sustainable, stable, fully functioning and inclusive devolved Government.
I would much rather not be here—I suspect that many of your Lordships might share that sentiment—and that the Bill was not necessary. However, for reasons we have discussed before, sadly it is. As a Government we remain committed to taking those decisions necessary to provide good governance and political stability for Northern Ireland. This package of measures is a key staging post toward restoring a devolved power-sharing Executive and Assembly.
I do not doubt that the debate that follows will be wide-ranging. However, I shall state at the outset what the Bill seeks to achieve. The purpose is threefold. First, it will create a time-bound period for the intensive talks necessary to create an Executive. Secondly, it will ensure the functioning of the Northern Ireland departments during that period. Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers in the absence of Ministers, and will be underpinned by guidance that will help Northern Ireland departments judge whether those powers should be used in the absence of Ministers. Finally, it will seek to ensure that key public appointments are made.
I thank the Delegated Powers and Regulatory Reform Committee and the Constitution Committee of this House, and I put on record both my appreciation and that of my right honourable friend the Secretary of State for Northern Ireland for their hard work in scrutinising and publishing the reports on the Bill so very quickly. We accept the Delegated Powers and Regulatory Reform Committee’s recommendation that the power enabling the Secretary of State to add offices to the table in Clause 5(2) should be subject to the affirmative procedure. The Constitution Committee raised concerns about that procedure and the fast-tracking of the legislation. We agree that this should not become the norm and that it should not be considered to set a precedent.
On the specifics of the Bill, first, it extends the period provided for in the Northern Ireland Act 1998 for Northern Ireland Ministers to be appointed before the local elections in 2019. As your Lordships will be aware, because Ministers were not appointed by 29 June 2017, the 1998 Act requires a further election before an Executive can be formed. As set out in my right honourable friend the Secretary of State’s Statement of 6 September, an election at this time would neither be helpful nor improve the prospect of restoring the Executive. From our engagement with Northern Ireland parties, we believe that this view is widely shared. Nor is the prospect of direct rule an attractive one. The provisions of Clause 1 seek to create a period in which an Executive can be formed and talks can take place, by removing that current legal impediment to an Executive being formed for a defined period.
The Bill also provides, in Clause 2, that this defined period may be extended once, for up to five months, removing the need for further primary legislation in the event that, for example, a short extension is judged  necessary to finalise an agreement and form an Executive. I assure noble Lords that we will not be waiting until March to bring the Northern Ireland parties together. Following the passage of this legislation, my right honourable friend the Secretary of State intends to meet party leaders to discuss the basis, process and timing for further talks. My right honourable friend will also welcome all efforts to improve and enhance the political dialogue between the parties in Northern Ireland—including Church leaders and Members of this House—to discuss how best to encourage meaningful political engagement towards the restoration of an Executive.
With regard to decision-making, during this period, in light of recent court judgments, Northern Ireland departments require certainty and clarity. Their decision-making powers in the absence of Northern Ireland Ministers have come under close scrutiny. The Bill makes clear that a senior officer of a Northern Ireland department may exercise departmental functions in the absence of Ministers during the period for forming an Executive, if the officer is satisfied that it is in the public interest to do so. The Bill also requires the Secretary of State to publish guidance on the exercise of departmental functions during this period, including the principles to which senior officers in Northern Ireland departments must have regard when deciding whether to exercise a decision-making function. A draft copy of this guidance has been published and placed in the library of the House.
The Bill stipulates that the Secretary of State must have regard to representations from Members of the Northern Ireland Assembly before publishing the guidance. Similarly, my right honourable friend would have regard to such representations should the need for revised guidance arise. We would also welcome representations from UK parliamentarians as well as MLAs on its content before a final version is published, something the Secretary of State intends to do shortly after the Bill receives Royal Assent.
The principle established by this Government’s interventions over the past year is that we will legislate where doing so is necessary to protect the delivery of public services and uphold public confidence in Northern Ireland. But let me be clear, while the NICS needs certainty in respect of decision-making powers, these measures do not set or change policy direction on devolved issues in Northern Ireland. That is for a restored Executive and Assembly.
The principles underpinning decision-making are set out in guidance rather than on the face of the Bill, as Northern Ireland departments need a degree of flexibility and discretion to enable them to reach appropriate and necessary decisions and ensure the continued delivery of public services in Northern Ireland. We have engaged closely with the NICS during the development of the draft guidance. The factual information provided by it has informed the approach we have taken.
This Government also recognise that, in the absence of an Executive, there will be some decisions that we, the UK Government, should take, such as setting out  departmental budget allocations for approval by Parliament to ensure that public services continue to function.
Noble Lords will be aware of some new elements to the Bill since it has arrived in our House. There was a series of amendments to Clause 4. To be very clear, the clause requires the Secretary of State to issue guidance to Northern Ireland departments on how to exercise their functions in relation to Sections 58 and 59 of the Offences against the Person Act 1861 and Article 13(1)(e) of the Matrimonial Causes (Northern Ireland) Order 1978 and wider human rights. The Secretary of State would also be required to report guidance under this clause on a quarterly basis to the other place, and set out her plans to address the impact of the absence of Ministers on human rights obligations in Northern Ireland within three months of the day on which the Bill receives Royal Assent.

Lord Steel of Aikwood: I am most grateful to the Minister for giving way. He will recognise that Clause 4, which was inserted in the Bill in the other place, is quite modest in its objectives. During the Brexit negotiations we have been told we cannot have a line down the middle of the Irish Sea affecting trade differently in one part of the United Kingdom from the other. Yet we have a line down the middle of the Irish Sea, affecting the human rights of one part of the United Kingdom, compared with the rights of the rest of the United Kingdom. The Supreme Court in particular, in relation to abortion, said recently,
“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate … the present law clearly needs radical reconsideration”.
What are the Government going to do about that?

Lord Duncan of Springbank: I hope that the noble Lord will allow me to expand on that later. However, in response to him directly on this issue, the Supreme Court judgment to which he refers was based on an absence of standing, which therefore created another technical issue—it was technical only, but it is important to stress that. We already have lines around our United Kingdom, because they are lines of devolution as well. The devolved settlements are important and have a role to play in this. I do not doubt that we will expand on that as certain amendments are discussed later today. However, I of course recognise the point that the noble Lord has raised and will report on it directly in due course, but perhaps he will allow me to continue.
The important aspect here is that, as the honourable Member who drafted the amendment has acknowledged, the new clause does not alter the law in Northern Ireland. This was not a clause that the Government sought but its inclusion was clearly the will of elected Members of the other place. I appreciate the sensitivities around the issues that the clause addresses. Abortion law and same-sex marriage have previously been subject to debate in this House and indeed in the Northern Ireland Assembly. As your Lordships know, these issues are devolved and should, rightly, be determined by an incoming Assembly. However, as I stated, the new clause does not change the law in respect of the wider legal framework in respect of either.
Finally, the Bill contains provisions to address the urgent need for key appointments to be made in Northern Ireland and to certain UK government-sponsored bodies where those appointments would normally require the involvement of Northern Ireland Ministers. Clauses 5 to 7 ensure that key posts can be filled while minimising the extent of UK government intervention in what are, rightly, devolved matters. Clause 5 would allow the relevant UK Minister to make certain specified appointments, exercising the appointments functions already conferred on Northern Ireland Ministers. As my right honourable friend the Secretary of State set out in her Written Statement on 18 July, these posts are the most pressing and urgent appointments, as they are essential to the maintenance of good governance and public confidence in Northern Ireland. They include the Northern Ireland Policing Board, the Probation Board for Northern Ireland, the Northern Ireland Judicial Appointments Commission and the Police Ombudsman for Northern Ireland. The Bill takes this focused approach rather than conferring a blanket power on the Secretary of State.
It is also important that we provide for other vital offices which might unexpectedly become vacant. For this reason, the Bill includes provision to add to the list of offices by means of a statutory instrument allowing the relevant UK Minister to exercise Northern Ireland Ministers’ appointment functions in relation to additional specified offices. This power would be used only if the appointments were urgent and necessary, and my right honourable friend the Secretary of State would of course consult the main Northern Ireland political parties before bringing forward regulations.
A large proportion of appointment functions in Northern Ireland are conferred on Northern Ireland departments. The provisions that I outlined earlier dealing with departments’ decision-making powers would provide the necessary clarity to allow the Northern Ireland departments to be able to exercise those appointment functions conferred on them during the formation of the Executive. It does not transfer to them any appointment functions currently conferred on Northern Ireland Ministers.
The lack of an Executive has also affected appointments to UK-wide bodies, as a small number of these require Northern Ireland Ministers to be consulted or to agree an appointment made by a UK Minister. The most pressing example is the appointment by the Home Secretary of a new chair of the Disclosure and Barring Service. Similarly, joint appointments are made by UK and Northern Ireland Ministers. The Bill addresses such appointments by allowing them to be made in the absence of Northern Ireland Ministers but it retains the Northern Ireland input by requiring the UK Minister to consult the relevant Northern Ireland department. The powers given to UK Ministers under Clauses 5 to 7 would expire when Northern Ireland Ministers were appointed and an Executive formed.
The people of Northern Ireland deserve strong, locally elected, accountable individuals sitting in an Assembly, and they deserve a functioning, sustainable devolved Government. Achieving that is our priority, and we continue to be focused on achieving it. On that basis, I commend the Bill to the House.

Lord Bruce of Bennachie: My Lords, I thank the noble Lord for introducing the Bill before the House today, and I think we understand the reason for it. As he explained, the Bill has three clear and limited purposes: to extend the period to form an Executive; to clarify the functions of the Northern Ireland Civil Service at this time; and to ensure that important public appointments can be made.
We on these Benches do not disagree with the individual elements of the Bill, but the Minister will not be surprised to hear that we are deeply frustrated and disappointed, as I think he acknowledged he himself was, that it has been necessary to bring these measures forward at all. This is now the seventh or eighth piece of legislation that the Government have had to bring forward to Parliament to ensure that Northern Ireland continues to function on a day-to-day basis in the absence of the political parties being able to reach an agreement that would restore the devolved Executive.
The Minister can be in no doubt that this party has a long-established commitment to devolution, and in particular to the institutions in Northern Ireland established under the Good Friday agreement. I have a personal, abiding memory of the referendum, as the result was declared on the morning of my wedding, giving a particularly positive lift to an already happy day. Like, I hope, everybody else around this Chamber, I would hate to see that agreement put at risk, as it currently is because of the stalemate.
The best solution for Northern Ireland remains devolved government and a well-functioning Assembly. However, we are deeply concerned that the real challenge of restarting the talks and restoring an Executive is not being faced up to. As far back as 2017, the then Secretary of State for Northern Ireland, James Brokenshire, stated that the current situation—which is continuing—was “not sustainable” in the long term. We are now almost one year on from that statement, and fast approaching two years since the collapse of the Executive. This really is a shameful indictment of this Government, as well as the parties.
The noble Lord the Minister has more than once talked of “a new impetus” being needed in the talks process—we agree, but when will we see this, and  what are the Government doing to spur it on? Although he mentioned that the Secretary of State will follow this legislation through, it would be good to hear in his response precisely what the Secretary of State is  going to do to try and break the impasse. It has been  eight months since there was any real attempt by the Government to restart talks between any of the parties in Northern Ireland. My understanding is that the recent attempts to encourage discussions were led by Naomi Long, the leader of the Alliance Party, in a separate meeting convened by church leaders at the end of September. The Government really do need to be visible and present.
For Northern Ireland to function properly, we need much more than this. While we welcome the clarity given by the Bill and by guidance to the Northern Ireland Civil Service, enabling officials to take key decisions is not enough. It lacks democracy and proper  accountability, as I think the Minister has acknowledged. It is in no way comparable to normal politics, where politicians drive change through committees, departments, the Assembly and the Executive. In the end, devolution is the only credible and democratic way forward, and we must surely exhaust every possible initiative to ensure accountable, local government is back in place.
For quite some time, we on these Benches and others have called for an independent mediator to be appointed to manage a fresh talks process. I would contest that now, more than ever, is the time that an independent facilitator must be appointed. The nature of the breakdown of the talks in February, the subsequent dispute over the status of negotiations, and the damage caused to political relationships make the appointment of an independent facilitator absolutely crucial, and emphatically in the Government’s own interests. In addition to building internal confidence in any talks process, there is also a pressing need to give the public confidence that everything possible is being done to restore the institutions. This means that any talks process needs to be inclusive, with all five parties around the table, and transparent.
As far back as the Stormont House agreement in 2014, there has been recognition that the petition of concern system in the Assembly has not been working as it was originally intended. Since then, we have seen times when it has been used to block progressive social reforms. Indeed, many of the issues that are currently in deadlock between the parties could be resolved democratically on the floor of the Assembly if the ability of some to use, and abuse, the petition of concern was removed. Rather than going back into talks and simply repeating the dynamics of past failures, can the Minister say whether the Government are giving any consideration to reforming the petition of concern? There is a possibility that future-proofing the Assembly to deal with social policies and equality issues, and preventing any single party being able to frustrate the will of the electorate in the future, could change the pitch and nature of the talks process. Does the Minister agree that such a change could be very helpful in achieving an outcome, and restoring an Executive with the capacity to address issues of current concern across the Province?
I have tabled and am supporting amendments to address some important policy issues for Northern Ireland that are currently not being resolved as there is no Executive and Assembly in place. I will address these in detail in Committee, but I place on record my strong personal support for Clause 4, which I am sure is shared on these Benches, which was inserted by a free vote in the Commons. Recent polls have shown support of up to 76% for equal marriage. There is also a huge amount of public support in Northern Ireland to reform the law on abortion: a recent poll showed that some 80% of people now believe that a women should have the choice of abortion if her health is at risk; 80% also feel that the same choice should be there in cases of rape or incest; and 73% of those surveyed in Northern Ireland agree that a woman should have the choice of abortion in cases of fatal foetal abnormality. A figure that the Minister should consider most carefully is that 65% of those surveyed in Northern Ireland think that Westminster should reform the law in the  absence of a devolved Government. Across the UK, surveys suggest that as much as 75% of UK citizens believe that the law should be changed and that the UK Government should take responsibility for doing it. I suspect that very high figure reflects discomfiture in knowing that British citizens do not have equal rights across the United Kingdom, something which my noble friend Lord Steel drew attention to in his intervention.
I have a further specific question for the Minister on the detail of the Bill. I would be grateful if he could address this in his remarks at the end of the debate. Clause 3 contains six initial subsections that allow senior officials to take decisions that may have previously been the preserve of Northern Ireland Ministers. However, subsection (7) then states:
“Subsections (1) to (6) have effect despite anything in the Northern Ireland Act 1998, the Departments (Northern Ireland) Order 1999 … or any other enactment or rule of law that would prevent a senior officer of a Northern Ireland department from exercising departmental functions in the absence of Northern Ireland Ministers”.
While the latter part of this sentence appears to qualify this power only to circumstances whereby senior officials are exercising power in the absence of Ministers, it is drafted in a fairly ambiguous way. That is an ambiguity that we could do without, given the length of time since we had a functioning Executive.
Therefore, could the Minister reassure the House that this cannot and will not be used as a justification for not abiding by some key equality and human rights safeguards in the Northern Ireland Act when any such decisions are taken? Specifically, Section 24 of the Act prevents departments “doing any act” that is incompatible with rights under the European Convention on Human Rights or discriminates against a person or class of person on the ground of religious belief or political opinion. Section 75 places procedural requirements to equality screen and to equality impact assess policy decisions. Section 76 prohibits discrimination on sectarian grounds by public authorities. Will the Minister give a categorical assurance that these important protections will not be undermined by the Bill? After all, the UK Government are the legal signatory of the European Convention on Human Rights and, I would argue, have a responsibility to protect and to promote these human rights.
It is abundantly clear that issues of vital importance that are in the public interest are not being addressed in Northern Ireland. This is of concern not just to people in Northern Ireland, but to a majority of the people of the United Kingdom. Rather than what we would hope for—the vibrant, progressive and shared society that we want to see—Northern Ireland is being allowed at best to drift and at worst to stagnate. It is imperative that the Government take urgent action to inject momentum into the talks and to end the ongoing political impasse. The people of Northern Ireland deserve nothing less, but it is the responsibility of the Government, as well as the parties of Northern Ireland, to break the deadlock, bring about change and get normality back.

Lord Morrow: My Lords, those who spoke before me, albeit just two, have committed themselves to devolution in Northern Ireland. That is something that I and my party are strongly in favour of. Indeed, records will show that we are the only party that has not dallied with other ideas for Northern Ireland over the past 30 or 40 years. We are strong believers in devolution. We believe that devolution is the way forward. We believe that it serves Northern Ireland well and that the people of Northern Ireland should be making those decisions.
However, I have some concern when I hear some Members past and present speak who want to cherry pick things that London should be deciding and then maybe Northern Ireland politicians can decide other things if and when devolution returns. We will strongly oppose any attempt to cherry pick and decide what should or should not happen in Northern Ireland. However, if—and I know that the Minister has not said this—it is the opinion that direct rule should return, then let it return in full, not piecemeal, because that gives everybody the worst of both worlds.
We stand here today ready to go back into a Northern Ireland Assembly tomorrow, with no ifs, ands or buts, and no preconditions. It has to be said here, loud and clear, that it was Sinn Féin members who brought down the Northern Ireland Assembly—and I suspect that, if it were to be restored again, they would do the same all over again at their own timing. That is the way they work.
There are aspects of this Bill about which we have great concerns. I have great concerns about Clause 4. I do not want to get into technical, legal arguments that I know others will want to address: I will save my contribution on that for Committee. I simply want to point out that some others do not want to point out that abortion is a devolved matter. Legislation in Northern Ireland is the most up-to-date in any part of the United Kingdom, having been decided in 2016 on a cross-party vote. There was no petition of concern, but it was decided on a simple, straightforward majority that the law should remain as it is.

Lord Adonis: My Lords, will the noble Lord explain to the House what the Parliament of the United Kingdom is supposed to do where a matter is devolved and there are no devolved institutions?

Lord Morrow: I simply point out again to the noble Lord that it is a devolved matter—but he consciously ignores that. I would respect him more if he would have more respect for what the people and the elected representatives of Northern Ireland have said quite recently. Furthermore, it is not going to help us to get power-sharing back. That surely should be the aim and the goal of this House: the restoration of devolution, as the Minister has already stated.
Polling of 1,013 adults in Northern Ireland conducted between 8 and 15 October showed that 64% of people do not think that Westminster should interfere in this issue but should leave it to the Northern Ireland Assembly. I agree with those 64%. The figures rise to  66% of women and 70% of 18 to 34 year-olds. The same polling also shows that 47% of people in Northern Ireland believe that intervention by Westminster would undermine devolution; only 30% disagree.
Furthermore, I understand that Amnesty has also done some polling on this same question, reaching different conclusions. However, I note, first, that it was conducted by an organisation that is not a member of the British Polling Council. Secondly, it did not release the polling tables for this question; and, thirdly—inexplicably—it left out the “don’t knows” and the “prefer not to says”. This inevitably distorts the outcome. Had the polling I cited been done, the proportion of Northern Ireland citizens saying that Westminster should not intervene would be more than 70%.
Of course, I accept that all polling has its limitations. The country vote on which we can depend was the election of the Northern Ireland Assembly, of which I was then a Member, by the women and men of Northern Ireland. This Assembly determined, by a simple majority vote and without reference to a petition of concern—I emphasise that—not to change abortion law in any way on 10 February 2016. Of course, if at some future point the Supreme Court issued a declaration of incompatibility with respect to any aspect of our law, the Northern Ireland Assembly would respond appropriately.

Lord Empey: My Lords, I said when the Bill was first mooted that it was a smokescreen for failure, and that is exactly what it is. It is before us only because the Government have been forced by various actions pending in the courts. One action would have forced the Secretary of State to call an election. The noble Lord, Lord Alderdice, referred some months ago to the fact that the Government had been acting ultra vires for quite a long time. The provocation for it, of course, was when a decision by a senior official in the Department for Infrastructure was struck down over a waste incinerator, of all things. The Government realised then that the civil servants who had been taking decisions could no longer do so and were not prepared to do so. I fully understand their position.
In many cases we are using the Civil Service in Northern Ireland as a football—as an excuse, in some respects, for not taking other decisions. As long as it is prepared to take decisions and keep things running, everybody can stand back and say, “Things are ticking over okay, there is no urgency”.
I also want to deal with the appearance that some form of political talks process and action is happening. There is not. Every fortnight, the Secretary of State rings up the party leaders, she speaks to them for a few minutes, asks a number of questions—probably off a list—and that is about the height of it. There is no formal process and there has not been one for months. There is nothing happening in that area at all.
The Minister has brought several pieces of legislation before us over the past year and we have had this conversation many times. He has said that we cannot continue with this, we cannot let this go on any longer, there is only so far we can push it. I have to say to the Minister that he has developed the ability to say  nothing with great conviction and compassion. I do not believe that if he was put in the spotlight he could actually defend what is being done here. On the formation of an Executive, the dogs in the street know that there is not going to be an Executive this side of Brexit. Everybody knows that. Secondly, of course, in the last formal process between the parties, which ended in February, while there was no agreement between the parties at that stage, there was clearly a set of understandings that were to be put to the respective parties for their approval. That blew up in their faces at that time. So getting that process going again with the existing personnel in place is going to be extremely difficult.
The other thing that has happened is that support for devolution and for the Assembly is withering. The behaviour of the last Administration was absolutely outrageous by any standards. Anybody who has paid the slightest attention to the inquiry conducted by  Sir Patrick Coghlin into the RHI would be shocked and appalled at the attitude and the culture that were operating in that Executive, where spads, paid enormous sums of money—between £85,000 and £92,000 a year—were able to effectively run departments. That applies to both the DUP and Sinn Féin. Sinn Féin’s Minister had to go cap in hand to somebody who was not allowed to be a spad, who did not even have that capacity but was in Sinn Féin headquarters, to get permission to see whether they could bring the heating scheme to an end and put a cap on the prices. A DUP adviser, when he thought the money was coming from annually managed expenditure, which is outwith the block grant, said that we could fill our boots. This is the attitude. This House and this Parliament seem to be oblivious to it; the Government know what is going on; they have not covered it up but have ignored it. They have turned a blind eye for months—for years. People are disgusted and fed up. Every time this happens, it is harder and harder to get things going.
I have drawn attention to issues concerning health. There is the issue of institutional abuse, which I know is coming forward in Committee. On health itself, I believe we have to take some decisions on humanitarian, not on political, grounds. With our waiting lists, people’s lives are being directly affected and injured as a result of the inability to have a Minister in place.
I say to this House and to Parliament in general that this situation cannot continue much longer, but as long as the Government are prepared to turn a blind eye to it, it will. There are no initiatives at all. Regarding the issues in Clause 4, while the public have latched on to this and we have all received lots of emails, nothing in this Bill is actually changing the law. People misunderstand that: they think the law is being changed, but it is not. To some extent, it is smoke and mirrors. Those who will be happy with the idea that the law is changing will be disappointed, and those who are not happy that the law is going to be changed are obviously frightened by this.
The Minister should at least clarify the legal position. We all know that the efforts to clarify the situation for civil servants are only going to last between now and the next judicial review. We will be back here in a few months in the same pickle as we are in today.

Lord Mackay of Clashfern: My Lords, my intention is to speak about Clause 4 only and the legal situation which is the background to it. I am taking no position on the substantive issues which underlie the clause, but it is quite clear that the intention of those who promoted the Motion put to approve Clause 4 as an amendment in the House of Commons, on a free vote, was to bring the law on abortion in Northern Ireland into line with modern law on the other side of the Irish Sea. The position is that abortion has been made a devolved subject. Therefore, the only statutory authority with authority to alter the statutes and statutory instruments is the Legislative Assembly of Northern Ireland and Ministers of that Assembly. There is no power whatsoever in the United Kingdom Parliament to interfere with that while it is devolved.
The noble Lords, Lord Steel of Aikwood and Lord Bruce of Bennachie, mentioned that there is a border in the Irish Sea on this point. That is certainly true. There are borders between here and Scotland on a number of things, including, for example, free prescriptions in the health service. It is part of devolution that the law on one side of the devolved border may be different from the law on the other side. I am a little surprised that exponents of devolution found that surprising, but that is the fact. That is part of the background of the law on this matter. The devolved issue is one, as I say, for the Northern Ireland Assembly and Ministers acting as Ministers of that Assembly.
Where that is the law, the question of the Human Rights Act is important. Your Lordships will recollect that the Human Rights Act does not modify existing law. There is a power in the courts to declare a provision of British law—this would apply in Northern Ireland as well—incompatible with the convention provision in the Human Rights Act. That decision of the courts does not affect the law unless and until it is acted on by Parliament. Perhaps the best example of that was the relationship between the Westminster Parliament and prisoners’ voting rights. That was declared incompatible with the convention rights by a Scottish court many years ago and the English court followed it, saying it was not necessary to do it twice because there was nothing wrong with the way that the Scots had done it—which is a compliment that I always like to hear. Anyway, that is what happened, and it remained the law of the United Kingdom for a long time. There have been some slight modifications recently but the idea that the Human Rights Act changes existing statutes is wrong. It is part of the provision of the Human Rights Act that it does not do so.
Therefore, the only authority to alter the existing law and bring it into conformity with the Human Rights Act is the legislature in question, if it is a statute that is in issue. Therefore, there is no question that the Secretary of State could by guidance alter the law in this matter, which is to a considerable extent defined by statutes which are in existence and in force in Northern Ireland. The Secretary of State is mandated to do this—she must do this—but if she were to make an order, it would be immediately set aside because it is quite clear from the statistics that have been given that not everybody in Northern Ireland is of exactly  the same mind in connection with abortion. If it were so, it might pass without any challenge but in Northern Ireland that is extremely unlikely. Therefore, if the Secretary of State were to make an order trying to escape the existing statutes of Northern Ireland relevant to this subject, she would be immediately struck down as doing something which she is not entitled to do. The fact that she would have been asked to do that by Parliament is an extraordinary situation.
I know that those who moved this amendment in the House of Commons did so with that in mind—that this might be a way forward—but in this House we must take the view that that is not possible. I tabled an amendment for Committee—the last one, which will presumably come fairly late this evening—about that. I am proposing to move the amendment so that discussion will be possible but I do not intend to press it to a Division because abortion has always been—rightly, because it is a matter of conscience—on a free vote. This amendment was passed on a free vote in the House of Commons and therefore I do not intend to press it here. There may be others who want to do that and the fact I have tabled the amendment makes that possible. I just make it clear that I am not going to do that because it would be completely ineffective in producing the result that the movers of it wanted.

Lord Dubs: My Lords, the Bill is a sad necessity and many of us hoped that the Executive and institutions would have been restored in Belfast long before today. I will make just a few brief comments.
One of the arguments that has been put is that we should stop paying Members of the Legislative Assembly. I know that their pay is going to be cut a bit but I caution against doing more than that small cut, simply because if we take away all income from Members of the Legislative Assembly, they will have to find other jobs, and then when the Executive is restored we will have no politicians ready to take over and we would denude Northern Ireland of some people who would have a part to play in public life there. So I would caution against being too harsh with the pay of Members of the Legislative Assembly.
I have tried to understand what constraints the Bill seeks to permit or not to permit in terms of decision-making by civil servants—and I am bound to say that I found it pretty difficult. I have read the bits of paper, but maybe the Minister will throw some light on this in winding up. Of course, the civil servants in Northern Ireland have, by tradition, done a pretty good job. They are used to it. Ministers come and go, and the civil servants stay—but in the absence of Ministers they tend to be excessively cautious. One cannot blame them for that, but the difficulty with excessive caution is that very little will happen unless we take away the constraints that the civil servants impose on themselves.
Let me give a few examples. On the Parliament channel I happened to stumble on some Northern Ireland television and saw a bizarre example, which I think I have now had confirmed. It is not proper for Members of the Legislative Assembly to put on the noticeboard above their constituency office more than their name and their party; they may not put their  email address or their phone number. Indeed, if that television programme was right, David Ford, a former Justice Minister, will lose his Assembly money and be penalised by £10,000 because he put his email address and phone number on the sign above his office door. I cannot think of anything dafter or more absurd. I hope that the Minister will find a way of getting rid of that stupid anomaly and giving David Ford the money to which he is surely entitled under the present provisions. We spend our time—or at least, they certainly do in the Commons—trying to make ourselves available to the public, yet there, by some bizarre reason, things go the other way.
I have been trying to understand the details of the Budget. I have not yet managed to do it all, but I understand that there are some provisions for extra expenditure in Northern Ireland, including expenditure on shared and integrated education projects. Is that extra money now available to be spent on integrated schools, and will civil servants get the go-ahead to do that, rather than having to wait until the Executive is restored? Integrated education is surely crucial to politics in Northern Ireland, and to harmony among communities. All we are saying is that parents in Northern Ireland would like to have the choice of integrated education, and I would like to feel that, on the basis of yesterday’s Budget Statement, there is a bit of money in the budget available for this purpose.
I also note what the Bill says about appointments. I think that there are some other appointments that are not listed, and the danger is that if the Secretary of State permits appointments to be made only fairly late in the day, there could be a lame duck in a senior post, not knowing whether he or she had a future. That is a very unsatisfactory position to be in. I urge that the Secretary of State should give as much notice as possible in the case of renewing appointments, or of removing appointees and appointing new people, so that there is at least some continuity. That would be fair to Northern Ireland and to the people concerned.
I am worried about what the decision-making will mean regarding planning constraints. There have been one or two such cases in Northern Ireland, and in the past few months civil servants have very cautious about giving the go-ahead for major projects requiring planning permission, because they are concerned about whether they have those powers or not. Planning constraints are important, but I hope there can be at least some relaxation, so that worthwhile projects that would create jobs and be beneficial to Northern Ireland are not held up. When people want planning permission for such projects they cannot always wait. They may not have the money to sit tight, and the chance will go away. The Minister will know of some examples.
I note what the noble and learned Lord who preceded me said about abortion, but I want to leave that until we deal with the amendment.
Penultimately, may I ask the Minister a question that he will expect to come from me—one about child refugees? I know that some parts of Northern Ireland have taken Syrian families, but I would like the Minister to answer this question: can it be made possible for Northern Ireland to provide foster accommodation for child refugees through the scheme under Section 67  of the Immigration Act? I have been told by people in Northern Ireland that they would like to co-operate, and there are local foster parents who would be willing. I understand that it is a matter for the health boards. I have talked to lots of people and they are all keen that there should be some progress. Can the Minister throw some light on whether that would be possible, or could be made possible?
Lastly, the Minister talked at a number of points in his speech about the consent of the Northern Ireland parties to one or two specific issues. I wonder how widely it could be made a principle underlying the Bill that the Northern Ireland parties should be asked in an informal consultation process about some of the issues we are talking about today. That would help to move things along. It would not give a mandate or make the process legal in terms of devolution, but at least consulting the Northern Ireland parties on some of the changes that need to be made might not be a bad idea.

Lord Eames: My Lords, the columns of our newspapers in Northern Ireland are frequently filled with people giving their wise or otherwise comments on public affairs. In the last few weeks the discussion of the Bill that is before the House today prompted one writer to say, “Here we go again”—and I have a feeling that that is the emotion that many noble Lords will be feeling at this moment. Because I believe that that is a danger in its own way, we need to put everything that we are saying this afternoon—and, as I have been reminded, this evening—in the context of what the reality is.
Yes, here we go again: we face another look at the disastrous consequences of a failure to establish a local Administration at Stormont. We all know the story, the excuses and the reasons, and we are left in no doubt that, even though at one stage in recent history, we are told, the main parties were within grasping distance of an agreement, no agreement was possible. For my part, I believe that we would be failing the people of Northern Ireland, who are after all the substance of what we are doing, if we did not realise that, no matter what the details are of our discussion and debate, it has an effect right across the board on a society that in many ways is unique.
It is unique because it is a devolved Administration and because many of the things that have happened question the value of devolution and the way in which the United Kingdom goes about it. In the margin of many of the arguments that we have heard over and over in this House, there are questions of a fundamental nature that we find it comfortable to avoid, such as: does devolution mean the New Jerusalem to those concerned because power is given to local politicians? When those local politicians find that the margins in which they are asked to work are not possible, we then ask the bigger question: does that mean we have somehow got the theory of devolution wrong?
Once more the disastrous consequence of the failure to reach agreement on the formation of that devolved Administration for which we had such hope at the time of the Good Friday agreement is that our people  are being denied a voice on serious issues. The reality is that this failure means that medical services, education, social services, roads, transport and indeed victims face impossible odds because Stormont cannot take serious decisions.
It would be very easy to place much of what we are talking about this afternoon in a context that takes us away from the reality of the experience of Northern Ireland. It is a society which has suffered much and which is still trying to come to terms with the wounds of the Troubles. They are not just physical or obvious wounds. They are the failure to build relationships, to mature in political relationships and to understand that within our grasp, if we have the rare will to do it, we can achieve much that has so far eluded us. The absence of this local devolved Administration in these days as Brexit comes galloping—dare I say?—across the Irish border, fast approaching with all its unanswered questions, means that Northern Ireland is bereft of the presentation of its local voice.
We have been reminded by the Minister that this is the Government’s attempt to meet a unique situation. We are told that it is one means of encouraging local government in Stormont. It places on our Civil Service responsibilities to take actions that could easily lead it into a legal minefield. That, for me, is a real concern. It causes long-term questions on the theory of devolution. We are bound to ask: after this Bill, what happens next? What happens if the consequences of this Bill falter yet again? Will the Government face another situation where special needs must be met by special provisions? Are we, in fact—I ask the Minister directly—in danger of setting a precedent that could be interpreted in other devolution relationships in the United Kingdom? Today we face decisions affecting the people of Northern Ireland which their representatives, rather than Westminster, ought to take.

Baroness Butler-Sloss: My Lords, no one in this House who has just heard what the noble and right reverend Lord said would feel anything other than the most profound sympathy, both for what he said and the picture he painted. I am English but married to an Ulsterman and go regularly to Northern Ireland. I heard that with mounting depression, but it does not surprise me. I also feel a great deal of sympathy for the Government, who are doing their best not to take over. They are doing their best to allow for a situation in which they can persuade those who do not seem to want to be persuaded that they must form an Executive and recall the Assembly.
I want to say a few words about Clause 4, which is not, of course, government-inspired, for obvious reasons. In the other place, there were interesting and useful arguments on devolution and human rights. It is not necessary to explore those today, except to say that the Supreme Court has criticised the situation in Northern Ireland in no uncertain terms. I particularly remark on the speech of the noble and learned Lord, Lord Kerr, who was the Lord Chief Justice of Northern Ireland, and was perhaps more outspoken about the injustice to the women of Northern Ireland.
On the Bill itself, even if there had been a declaration of incompatibility, as a previous speaker seemed to think, the Supreme Court could not make it because it came from the commission, not an individual, so there was no declaration. As the noble and learned Lord, Lord Mackay, pointed out very clearly in his exposition of the law, a declaration of incompatibility would not help at all in this situation. If he is right, as I assume he is, abortion is currently more serious an issue than same-sex marriage because at least there can be civil partnerships. The current situation on abortion is, however, as the Supreme Court said, profoundly unfair. I would not want to open the floodgates of easy abortion to Northern Ireland, but certainly there are situations of rape, incest and foetal abnormality that absolutely cry out to be dealt with.
Having heard the figures from various noble Lords, it is interesting that, like many others, I have had a lot of emails from women supporting the clause and women opposing it—more supporting the clause. I feel, “Poor dears, what do they think this clause  really means?” The clause means absolutely nothing on abortion. It will help no one, and it raises expectations with a clear misconception, misunderstanding and misinterpretation of what the clause will say when it inevitably becomes law.
As the Secretary of State in the other place said, the clause puts an impossible burden on her because she will be expected to do something. Those who disapprove of it will see that she may do something they do not like. Those who want it—despite some of the figures we have heard, many women do want it—will find that she cannot do it. Her civil servants cannot do it. As the noble and learned Lord said, if they tried to do anything, they would rightly be slapped down by judicial review because sufficient people would oppose it for it to be taken to the Northern Ireland courts.
There has been a very well-meaning attempt by Members of the House of Commons to circumvent devolution by putting in a clause that I cannot believe they thought would mean anything or would do any good. I do not understand what they thought would happen but it will send a message—or a number of messages. I was told yesterday by somebody from Northern Ireland that this could even send a message that might have some adverse effect on the Good Friday agreement. That may be a step too far but it is certainly something that one cannot ignore. It is the expectation that has been raised that is so sad. What will the Belfast Telegraph, the News Letter or other newspapers in Belfast say after this goes through and becomes law?
If anything is to be done, the Government will have to take over the management of Northern Ireland and, in doing so, the point made by the noble and learned Lord will fall away because London—Westminster—would be making the laws. If Westminster makes the laws, it could change the Offences Against the Person Act, but until the Government do that—and they have absolutely no intention that I can see to do that, for obvious reasons—there is a stalemate, and nothing useful can be done. It is very unfortunate that seeing the Bill through on one day, for perfectly good  reasons, means that there is no time for reflection on the best way forward. Clause 4 will pass and it is very unfortunate that it will become law.

Lord Dunlop: My Lords, I rise to support this Bill—the fifth piece of fast-track Northern Ireland legislation this Session. I confess that I do so with a slightly heavy heart, because legislating this way is far from ideal, as the Constitution Committee— of which I am a member—points out in its report. However, I sympathise with the Government’s predicament. Last year, as a Minister in the Northern Ireland Office, I brought before your Lordships’ House a fast-track Bill to extend the limit for creating an Executive to 108 days. Going the extra mile to try to restore devolved government in Northern Ireland is clearly right. By all accounts, as has already been pointed out, the DUP and Sinn Fein came within a whisker of an agreement in February. Further extending the time available is an understandable impulse, but will the sense of urgency to strike a deal diminish with each deadline passed and then extended? What happens if stalemate persists at the end of extra time, when there is no political equivalent of a penalty shootout to break the deadlock? These nagging questions remain.
All that said, in the circumstances I believe that the Bill is the least-worst option judged against two pretty unattractive alternatives. Those are either that there will be another Assembly election that changes little, with a campaign that might unhelpfully raise the political temperature; or that the spectre of direct rule returns. No one wants that; history has shown that it is not easy to escape from—it took nearly five years the last time.
That is why the current state of affairs is so frustrating. Between the end of direct rule and the dissolution of the Assembly in January 2017, Northern Ireland enjoyed the longest unbroken period of devolved government since the dissolution of the old Stormont Parliament in 1972. That was nearly 10 years in which there were real and positive steps forward in Northern Ireland, and it is a more peaceful and prosperous place today as a result. Yet, just at the moment that Northern Ireland should be driving forward and building on the progress of the last two decades, it has languished for 22 months without executive Ministers. If negotiations go to the wire allowed for by this Bill, the vacuum could in theory persist for another 10 months. That is nearly three years without an Executive developing policy and being held to account by a fully functioning Assembly.
This is a troubling democratic deficit that our UK Parliament could never hope to make up. However, if further legislation is required, or fresh guidance from the Secretary of State, I hope the Government will be mindful of the need to provide as much time as practical for this Parliament to scrutinise and debate what is proposed.
It is, of course, the Buick judgment in July that has forced the Government to act now. The court judged that decisions normally for a Minister to approve lie beyond the competence of a senior civil servant in the absence of a Minister. However, the court offered no  definitive view on where the dividing line should be drawn. Matters that are significant, controversial or engage more than one department would normally be a collective executive decision, and therefore are clearly beyond a senior civil servant’s competence, in even these exceptional times.
The Bill still leaves a very large grey area. In the absence of this Bill and in the face of a heightened risk of further legal challenges, one can well imagine how there might be a chilling effect on Civil Service decision-making. The Bill seeks to fill that void. However, the lines between policy and administration are never clear cut. The scheme set out in Clause 3 and draft guidance attempts to strike a balance that is difficult, if not impossible to achieve—balancing sufficiently wide scope of administrative discretion with the controls on how that discretion is exercised, without normal accountability mechanisms. The Constitution Committee’s report highlights a number of constitutional issues, including the breadth of conferred powers, lack of clear lines of accountability and the retrospective effect of Clause 3. However, the committee accepts that exceptional times require an exceptional response, while expressing concern that the Bill’s exceptional and constitutionally challenging provisions are not taken as precedents for future legislation.
Whatever our concerns about the Bill, we must not lose sight of the bigger picture. In the absence of fully functioning devolved institutions, decisions crucial to the future prosperity and security of the people of Northern Ireland are simply not being taken. Devolved corporation tax designed to give a boost to Northern Ireland’s economy is stalled; £2 billion of critical economic infrastructure, such as the north/south electricity interconnector and the new Belfast transport hub are in a holding pattern. Recommendations from the Hart report into historical institutional abuse are unimplemented. A strong elected voice representing Northern Ireland’s interests in the Joint Ministerial Committee discussions to prepare for Brexit is absent, not to mention the pressures facing schools and hospitals. Nothing in the Bill will directly change this state of affairs. One can only hope that the Bill provides a space to facilitate a political resolution.
My last official engagement as a Northern Ireland Office Minister was on 7 June last year, on a windswept ridge in Flanders, at the ceremony to commemorate the centenary of the Battle of Messines. The battle has great symbolic significance for the island of Ireland. Soldiers from the 36th (Ulster) and 16th (Irish) Divisions fought together for the first time during the First World War. Unionists and nationalists set aside political differences to unite in a common cause. Their story and sacrifice made a powerful impression on all those there, nationalists and unionists alike. The example of those servicemen echoes down the years and stands as a rebuke to those who have not—after nearly two years—resolved their differences. As we approach our own national day of remembrance, I hope that Northern Ireland’s political leaders will reflect on the example set by those soldiers, rise to the same heights of leadership and do right by the people of Northern Ireland by restoring the devolved government they clearly want, urgently need and so richly deserve.

Lord Browne of Belmont: My Lords, regrettably we are again discussing another piece of legislation that should not have been necessary. Once more, we are holding a debate against the backdrop of a Northern Ireland with no locally accountable decision-making body in place. None of us wants to be in the current situation with no local decision-makers. As I have said many times before in this House, it is vital that we move forward positively. Northern Ireland has moved on considerably during the last decade and, despite the present situation, none of us wants to go back to where we were in the past. In the context of the continued absence of a fully functioning Assembly and Government, legislation such as this is necessary to facilitate the continued governance of public services. Bills require scrutiny, analysis and examination. This is the level of accountability that one should expect. Time does not allow for a great deal of that today and I would, naturally, prefer that such matters were scrutinised in the context of Stormont. Unfortunately, this is not the present reality.
I support the Bill, but I do so cautiously as it is limited in scope and far from an ideal solution. Before focusing on a couple of specific concerns, it is important to look at how we have reached this situation. It is worth repeating that we are discussing these matters in your Lordship’s House, and in the other place, only because of one party’s narrow agenda. Instead of a fair and balanced way forward, the party that collapsed the Stormont Assembly in January 2017, and refused to return, continues to halt progress in re-establishing a Government. One party continues to place the fulfilment of demands ahead of governing in the interests of everyone in Northern Ireland. Unfortunately, the result is that there is little prospect of a return to local decision-making at this time.
The legislation before us, although welcome, will continue to present challenges. Unaccountable senior civil servants have been tasked with taking decisions within departments for a considerable period of time. It is true to say that in some instances, decisions have been delayed and many are still not being made. I commend the Government for being proactive in issuing supporting guidance to the Civil Service so that it can get on with its job of doing the necessary work to advance day-to-day living in Northern Ireland.
The Buick ruling undoubtedly undermined the status of officials. Although the legislation and guidance are aimed at dealing with this directly and at providing some advice and clarity to reassure officials, I remain concerned that it gives limited scope for decision-making. There are still real concerns that decisions will be subject or open to judicial review or legal challenges. Does this legislation do enough to minimise the possibility of such a scenario?
It is to be welcomed that there is some assurance that decisions can be made, although it is likely that these will be non-controversial, covering planning and investment, which enjoy a broad consensus. I welcome the Government’s clarity in the other place that a decision such as that on the transport hub, which is crucial to Northern Ireland’s economy, can be advanced   under the terms of the legislation. Policing Board members and other appointments can now be made, and this is extremely important.
There is now a specific requirement for senior department officials to report monthly directly to Her Majesty’s Government on decisions that have been taken under the Bill. This is an important point which deals with transparency, and I am pleased to see that it has been included.
There are some understandable fears of a continuation of the current situation, in which decisions in a range of areas, such as education, health, housing and major projects are not being taken. The Bill provides no certainty on key decisions. Permanent Secretaries in a number of departments have been cautious to date about advancing the number of decisions which have been in the pipeline for a considerable time. More than 200 decisions have lain in abeyance across departments since the suspension of the Assembly, and although we have made some progress within this Bill, there is no compulsion for officials to make key decisions that impact on the people of Northern Ireland.
These decisions need to be made if we are to see day-to-day public services restored to the level at which they should be. Budgetary decisions also need to be taken urgently, and policing and departmental spending challenges will continue to be an issue in some cases, as the allocations officials are working with are based on historic decisions taken by the previous Assembly.
On Clause 4, regardless of one’s personal views on abortion, it must objectively be accepted that this is a controversial issue in Northern Ireland. An amendment has been tagged on to this Bill, and this does not allow enough time for proper consideration or scrutiny of this matter. It is also the case that, in the United Kingdom, this is clearly defined as a devolved matter. The courts have recognised that this issue is, rightly, for the relevant democratic body, which, in this instance, is the Assembly. This is an attempt to change the law. As the Government have previously noted, guidance cannot do that. Any change in the current law in Northern Ireland will require legislative change. This provision is asking the Government to ask officials to do something that is impossible in law. This clause is therefore an inappropriate vehicle, regardless of the substantive issue involved.
Given that we are now approaching two years since the Assembly last met, we have reached a point where there needs to be some level of political decision-making, accountability and public scrutiny. Decisions will need to be made on a range of issues. I ask the Minister to provide assurance to departments that relevant ministerial approval will be provided.

Lord Alton of Liverpool: My Lords, in March 1979, four days after Airey Neave was brutally murdered in the precincts of Parliament, I made my maiden speech in the House of Commons. I reflected on the need to find political solutions to the endless cycle of violence in Northern Ireland. During the years that followed, I served as a spokesman on Irish affairs. In 1985 I was appointed by the noble Lord, Lord Steel, to  be a member of the commission that served under the chairmanship of the late Lord Donaldson of Kingsbridge, which produced the report What Future for Northern Ireland? Our commission concluded that progress could be made if, instead of encamped and embedded hostility to the other community, the respectful place of both traditions in a devolved power-sharing institution could be recognised. While endless legislation was rushed through as emergency legislation, none of it addressed the fundamental issue.
Eight years later, on 20 March 1993, the shocking waste of innocent life was underlined when a bomb was left in litter bin in a shopping area of Warrington. Two children, three year-old Johnathan Ball and 12 year-old Tim Parry, were murdered. As I stood with John Major at their funeral, it was clear that the finest memorial to those boys would be renewed efforts to end a conflict which, over 30 years, claimed 3,600 lives, injured and maimed thousands more, and left countless lives scarred and disfigured in the way that my noble and right reverend friend Lord Eames described earlier.
The Downing Street declaration of December 1993 paved the way for the Good Friday agreement, signed on 10 April 1998. The painstaking and patient work of a succession of Secretaries of State, some of whom have been in your Lordships’ Chamber this afternoon, the statesmanship of men like John Hume and the noble Lord, Lord Trimble, and ultimately the willingness of the Reverend Ian Paisley and Martin McGuinness to make devolution work, set aside the forced choice between British and Irish identities, with two tribes looking out at one another in enmity and hate—all gains alluded to by the noble Lord, Lord Dunlop, in his moving speech.
I hold both an Irish and a British passport, as do my children. In two world wars, my grandfather and father fought in the British Army, and an uncle died in the Royal Air Force. My mother was a native Irish speaker. Her family suffered extreme poverty in an area where Irish nationalism and republicanism had been nurtured by famine in one century and brutality in the next. So, more than most, I have always had to hold in tension a love of both traditions. From both sides of my family I was taught to abjure violence and to uphold the sanctity of every human life. I am troubled to see the gains of those years now at risk. Here we are again, rushing legislation through this House in 24 hours flat, with the House of Commons having done the same.
I was struck—it has not been referred to yet—by the report of the Select Committee on the Constitution of your Lordships’ House, published only yesterday. It stated:
“We question whether the speed at which the Government wishes to pass this Bill is necessary … more time (even with a fast-track timetable) could have been made available for parliamentary scrutiny of this Bill”—
which is surely our job. It continues:
“We emphasise that in any other circumstances provisions such as these which challenge established constitutional principles would not be acceptable”.
That brings me to Clause 4, which the noble Lord, Lord Browne of Belmont, just referred to, as did other noble Lords. It purports to provide guidance to members  of the Civil Service in Northern Ireland in relation to the repeal of Sections 58 and 59 of the Offences Against the Person Act 1861: namely, the provisions banning abortion—the deliberate ending of the life of a child in the womb. This is a serious issue. This is the law of this land. “Procuring miscarriage” is an offence unless two doctors agree that one of the defences set out in the Abortion Act 1967 applies. So how can the Secretary of State issue guidance to another jurisdiction advising on the repeal of legislation that is current law in her own jurisdiction? As the noble Lord, Lord Empey, said earlier, this is smoke and mirrors—and, as the noble and learned Baroness, Lady Butler-Sloss, said, it makes a nonsense. This is an absurdity, and on this point alone these ill-thought-through amendments ought to be dismissed.
In the mid-1990s, I accompanied a cross-community delegation of Members of Parliament—from the Social Democratic and Labour Party, the Official Unionist Party and the Democratic Unionist Party—to see John Major. We were given his assurance that he and the Conservative Government would insist that abortion would remain a matter to be settled in Northern Ireland. It troubles me that Clause 4 seeks to unsettle that agreement. In a Bill of such a limited and temporary nature, how can anyone reasonably suggest that an issue as contentious and sensitive as abortion should even be included for consideration?
In the Commons, the amendments that were introduced came at such short notice that many MPs did not even know that the House would divide. Karen Bradley, the Secretary of State, was right when she said that if the amendments were passed, which they were, it would put the Northern Ireland Civil Service in “an impossible position”. She went on to say that,
“the Bill cannot force Northern Ireland Departments to change the law”,
as the new clause seeks to do—a point made by the noble and learned Lord, Lord Mackay of Clashfern, in his remarks earlier. The Secretary of State said:
“It would be totally contrary to the rule of law and the way the independence of the civil service across the whole United Kingdom operates”.—[Official Report, Commons, 24/10/18; col. 385.]
In March of this year, 47 Members of this House, including former Cabinet Ministers, co-signed a letter to the Secretary of State for Northern Ireland noting that legislation from Westminster would severely destabilise the devolution agreement. The Prime Minister says it would not be right for the United Kingdom Government to undermine the settlement agreement.
We have heard many references during the debate to things such as human rights. In December we will celebrate the 70th anniversary of the Universal Declaration of Human Rights, which says that everyone has the right to life. There is no right to abortion in human rights law: let us be clear about that. Nowhere does the Universal Declaration of Human Rights refer to abortion being a human rights question.
There will be a chance to return to these issues in Committee, but let me conclude. Noble Lords do not have to agree with my substantive opposition to the taking of the life of a child in the womb, up to and even during birth in the case of a child with a disability—which results, in Great Britain, in one abortion every  three minutes, or around 40 in the two hours that we have been debating this Bill so far, or some 9 million since 1967—or my noting that if that legislation had applied in Northern Ireland, 100,000 people would not be alive today who were born because the legislation does not apply there. Noble Lords do not have to agree with my view about this to be concerned about the provisions in this Bill. As parliamentarians, we have a duty to pass laws that make sense, a duty to uphold the principles of subsidiarity, a duty to resist the making of laws on the hoof, a duty to insist on proper scrutiny and debate, a duty to contest ideology and sloganeering, and a duty to respect the people of Northern Ireland.

Lord Trimble: My Lords, I have a lot of sympathy with the suggestion made by the noble Lord that we could have benefited from a procedure that allowed a more thorough examination of the legislation. However, we are where we are, and we are dealing with legislation which at the moment has to be acknowledged to be necessary. It is necessary because, for a long time now, the Secretary of State for Northern Ireland has been vulnerable to a judicial review, and while that has not matured, she does need the provision that is in here to protect her against that.
Another factor that has been mentioned is with regard to doubt over the capacity of civil servants to take decisions in these matters, and here I just do not understand the problem. The Government of Ireland Act 1920 is quite clear: Section 8 puts executive powers in departments. Very clearly, the devolution is to departments. We could have a long argument about how this came about, because it flies against normal British practice, but this happened. There are hypotheses about it, but I am not going to go into the question of how it came about; I am simply saying that is the law, and that is the law that civil servants are exercising. Civil servants may find it embarrassing, but the law is as it is in the 1920 Act.
Clause 4 has been referred to, and I agree with a lot of the negative comments made with regard to it, but I have to say there is again another misunderstanding of what the law is. With regard to the law in Northern Ireland, the only substantive difference between the law in Northern Ireland and the law in England and Wales on abortion is the question of foetal abnormality. On all other matters the law is the same, in terms of the substance of the law. What is different is that the law in England is in statute law, but in Northern Ireland it is in common law: judicial decisions, including the Bourne decision in 1938. The problem then lies with the lack of a clear process and a way of proceeding. It is all very well to say, “Go and see your GP and he should arrange an abortion for you”. I do not think that that happens very often, but that is basically what should happen under our law. Rather than people having to go to England and spend thousands of pounds, they should go be able to go to their GPs. Unfortunately, some doctors do not display the courage or constancy that is required. A further problem has been that various people put the health service under pressure to produce guidelines, which resulted in the  Civil Service producing guidelines that were overly cautious and narrower than the law. Those guidelines should be dumped and we should have a clearer understanding of the law. Again, I do not want to spend too long on this point, although it has to be made. I am afraid that I disagree with some noble Lords—indeed, some noble Lords who are highly learned in the law—but I am confident that the situation is as I have stated it.
We should focus on the political problem in trying to resolve the difficulties. I agree with a lot of what my noble friend Lord Empey said. He gave a very clear description of the problems and of the way in which, unfortunately, the Government have not been able to progress matters in the way that we would like. However, that is understandable, as we have so much on our plates at the moment. I can well understand someone saying to the Secretary of State for Northern Ireland, “Don’t bring me any new problems”. I am sure that that is the sort of thing that is being said there, but it is unfortunate that we do not have a viable political process to bring about a restoration of devolution.
There would be difficulties with that, because it is quite clear that Sinn Féin does not want to see Stormont restored. We need to find a process analogous to that which happened way back in 1997, when Tony Blair became Prime Minister and made his first speech outside London, in Belfast, in which he said to the republican movement, “A settlement train is coming. I want you to be on the train, but it will be going with or without you”. That put pressure on Sinn Féin to come into the process. We now need to find a way of exerting that kind of pressure on Sinn Féin to get things moving, because it will not move without pressure. One likes to think that, once Brexit is resolved, it might be prepared to look at things, but I am beginning to have doubts about whether it will really want to  do that.
So the question is: how do we exert the necessary pressure? I have put forward proposals on these matters on previous occasions, but nothing has happened, probably because those proposals were too ambitious. This time, I am going to the opposite extreme and will table an amendment later today which is as cautious as I can make it. In fact, I cannot think of anything that could be more cautious than what I am about to propose, but it might start something moving, which is what we need to happen.
Finally, there have been a number of unkind comments, particularly in the debate in the other place, about Northern Ireland MLAs drawing salaries when there is no Assembly for them to participate in. That is not their fault—unless they are Sinn Féin Members, in which case I think they have to bear some responsibility. They are trying to do their best in their own way, and I shall give a little plug for my own MLA in Lisburn, Robbie Butler. One of the things he is doing to try to keep politics alive is that normally, on a weekly basis, he transmits videos that deal with various issues, and they are very effective. In September, he issued a video on suicide awareness and it has had 34,000 viewings, which is incredible in the current context. I declare an interest in this matter. It is not just that Robbie is my MLA; he has had the good sense to employ my son in his office. I mention that to show that MLAs are doing  the best that can be expected of them in the present circumstances. However, it is our responsibility, and particularly the Government’s responsibility, to put them back into the circumstances they ought to be in—in a functioning Assembly.

Lord Adonis: My Lords, it is a great privilege to follow the noble Lord, Lord Trimble. Given the success he brought to the office when he was First Minister of Northern Ireland, can I suggest that his son is immediately given a hereditary peerage so he can participate in these debates? This might enable him in quick succession to become First Minister of Northern Ireland.
I feel, as with some other noble Lords, like an interloper in this debate, particularly sandwiched as I am in the batting order between the noble Lord, Lord Trimble, and the noble Lord, Lord Alderdice, both of whom played an extremely important role in the operation of the devolved institutions. However, the reason why I and others are speaking—and we do so without any hesitation—is precisely because there are no devolved institutions in Northern Ireland at the moment. We take a view, which we have a duty to take, that after two years where there has been no Assembly and no Government in Northern Ireland, we in Westminster have a duty to take an interest, including, I would say to the noble Lord, Lord Alton, in fundamental rights in Northern Ireland.
The point which is essential to grasp here—and it is also my comment on the speech of the noble Lord, Lord Morrow—is that if Northern Ireland wishes to exercise the prerogatives of devolution, it must operate devolved institutions. It is unacceptable for those of us in Westminster, who are ultimately responsible for the welfare of people in Northern Ireland, to be told that we should respect a devolution settlement which the political parties in Northern Ireland will not respect themselves. That is an unsustainable position.
I believe that is against our fundamental duties as Members of this House and the other place, and there can only be a short period of time for which we can tolerate it any longer. This Bill says until the end of next March—that is nearly three years in which the people of Northern Ireland will not have had an Assembly or a Government. Could the people of England tolerate for one moment the idea that this House would not be sitting for three years? I made a bit of a fuss before the summer at the idea we were not sitting for 10 weeks. The idea we would not sit for three years—that the other place would not sit for three years too—and would devolve to civil servants the task of running the country is utterly unthinkable, and that is the context in which we are dealing with these issues in Northern Ireland.
I say to the noble Lords, Lord Morrow and Lord Alton, if they think that the devolved institutions of Northern Ireland are required to protect fundamental rights, then those institutions must sit and legislate. If they do not sit and legislate, then we have a duty to legislate in their place, because there is no one else who can do it. We cannot tolerate a situation where there is no Government or legislature for Northern Ireland. If the only legislature available is this one, then we have a fundamental duty in that respect.
The noble and learned Lord, Lord Mackay, who is not in his place at the moment, said that we have to respect the devolution settlement and we do not have a right to legislate. I really do hesitate to take on a former Lord Chancellor, but my understanding of the constitution of this kingdom is that if this Parliament chooses, in its wisdom, to legislate, its law is supreme. Indeed, it has to be supreme because there is no other supreme body in this kingdom.
If we continue in this situation where the political parties in Northern Ireland—despite the strong advice being given by many of their wisest leaders in your Lordships’ House this afternoon—take the view that they are not prepared to operate those institutions, there must come a point, probably not far distant from now, where some form of direct rule will need to be instituted. The alternative to that is no legislature and no Government in Northern Ireland, which puts an intolerable pressure on civil servants, who cannot be expected to have to take these decisions without a proper, democratic set of institutions.

Baroness Butler-Sloss: I want to ask the noble Lord whether he thinks he was right in saying that this Parliament in Westminster could actually pass legislation. I think we would have to take over Northern Ireland and go beyond devolution when there is power for us to do that. But I think in the absence of that, we could not, today for instance, pass a law.

Lord Adonis: My Lords, I absolutely defer to the noble and learned Baroness. If she says that that is the case then she is obviously right, but there clearly are procedures by which we can exercise our sovereignty—the only question is what those procedures are.
I thought that the speech of the noble Lord, Lord Empey, was quite brilliant. I have been to Northern Ireland several times in recent months to acquaint myself with the situation because of the debates taking place on Brexit, but also partly because the only way of understanding what the views of the parties and politicians across the spectrum in Northern Ireland are is to go there. It is not possible to get them here because, unfortunately, Sinn Féin does not take its seats, nor is it possible to be guided by the views of the Northern Ireland Assembly because it is not meeting. It is quite a commentary on our affairs that literally the only way of understanding what is going on in Northern Ireland, if you sit here in the Parliament in Westminster, is to go to Belfast and meet the parties.
When I went to Belfast, I had extremely constructive discussions with the parties in Stormont. It was the first time I had been to Stormont; its grandeur is quite extraordinary. These are institutions very much in the image of Westminster. What really struck me while I was holding meetings in one of the committee rooms, where I am told that the Executive used to meet, was that in the Senate Chamber was meeting the inquiry into the renewable heat scandal, which the noble Lord, Lord Empey, referred to. If a scandal on that scale had happened here in London, by now there would be cases in the courts and serious legal proceedings. The noble Lord is absolutely right to say that the fact so little is known about those affairs here and we take so little interest in them is, I am afraid, something of a  condemnation of us. However, if these affairs continue in Northern Ireland, I believe we will have no choice whatever but to become involved.
This is Second Reading and we will deal with Committee in due course. I will put down a marker for three issues that seem essential for us to address ourselves to in Committee, since there is no Assembly in Northern Ireland. The first is the issue of a mediator and getting serious talks started that could lead to a new Government in Northern Ireland. The Minister, in his excellent introductory speech, said that “intensive talks” are necessary. He also said—I noted this down as he said it—that,
“we will not be waiting until March”,
to get intensive talks going. I take those to be significant statements. Could he, in his summing up, return specifically to the issue of whether the Government will as a matter of urgency proceed, with agreement among the parties in Northern Ireland, with the appointment of a mediator? It seems an essential next step since nothing else appears to be producing momentum. I have amendments tabled in respect of that, but I do not intend to press them. I am looking for assurance from the Minister that the Government will move in this regard.
Secondly, on abortion and equal marriage, the situation as I see it is as follows. It is a judgment that will be held by a majority in this House and in the House of Commons that the current law in Northern Ireland is not consistent with fundamental human rights. Other noble Lords might take a different view and some of them have spoken in this debate, but it is my view that that would be the judgment of a majority. Indeed, that clearly was the judgment of the majority in the House of Commons. I expect that it will be the judgment of the majority in this House too. The only point I make in this regard is this: if the people of Northern Ireland want to take a different view through their elected representatives, those elected representatives must meet, because there will come a point, which I believe is not far distant, where, if they do not meet, we will be obliged to legislate.
Thirdly, there is the issue of Brexit. What has taken me to Belfast, Dublin and the border territories in recent months are discussions on this very vexed issue of the Irish border and how it is possible for us to Brexit while not having a hard border. It seems to me that we need some mechanism in the coming months, given that there is not an Assembly and an Executive in Northern Ireland, where we—this Parliament in Westminster—can receive the views of the elected representatives of Northern Ireland, not just from the one party that takes its seats in the House of Commons. In my amendments on the Order Paper, I suggest that the way of doing that would be to have a special sitting of the Northern Ireland Assembly without there being an Executive, purely for the purpose of debating Brexit and reaching a resolution that could then be submitted to the Parliament here. My understanding from his speech is that the noble Lord, Lord Trimble, might have a more ingenious suggestion to make later on in Committee as to how the opinions of the parties in Northern Ireland might be taken in respect to Brexit. I will absolutely defer to him if he has such a suggestion  to make. I believe it is important in the coming debates on Brexit that we are able to take account in some formal way of the views of the political parties and their elected representatives in Northern Ireland. In the absence of any better solution to this problem, I suggest that there should be a special sitting of the Assembly.

Lord Alderdice: My Lords, other noble Lords have already commented on the fact that yet again, we have fast-track legislation in respect of Northern Ireland. In no way, however, could this be described an emergency situation. Time after time I have advised the Government in this House from these Benches that the Secretary of State was operating ultra vires and that civil servants could not take the decisions that needed to be taken. The last time was in the debate on the Budget on 18 July. It is not just regrettable: it is becoming a really bad habit to keep bringing forward fast-track legislation when the problems have been known well in advance. It is almost as though the Government do not seriously want to discuss and debate these matters in detail, because there is no other excuse for what is being done.
Having said that, I am, of course, glad to see that the positions of the Secretary of State and the civil servants are being regularised in respect of departmental functions and appointments. However, that addresses only the legal problem and in the short term. It does not address the political problem, which is the reason for us being in this difficult situation. Noble Lords on the other side have described the responsibility that Sinn Féin bears for being in this situation, but it is not only a question of Sinn Féin.
Let us reflect on the fact that Martin McGuinness, who played a very valuable and constructive role with Dr Ian Paisley—Lord Bannside—resigned over the question of the First Minister’s handling of the RHI debacle. As time has gone on, whatever responsibility some members of Sinn Féin and Sinn Féin Ministers may have, it is absolutely clear that what was happening under the aegis of the First Minister, Arlene Foster, was utterly unacceptable and reprehensible. The report that is going to come out will be devastatingly bad, and so it should be. What is worse is that Arlene Foster had the experience of stepping in for Peter Robinson when he, as First Minister, stepped back from his role briefly but very appropriately on a matter of much less public expenditure import. She could have done the same, and we might well have not had the suspension of the Assembly.
On the question of whether we need a mediator, the parties were perfectly capable of getting together and coming to an agreement. The problem was that Mrs Foster was clearly not able to deliver that agreement when it went back to her own party. There is no evidence that getting an agreement through a mediator or otherwise is actually going to deliver, because it is not only one party that is a problem here: it is two parties. That is why, in addition to saying to the Government, “You have a legal problem with the Secretary of State and possibly civil servants operating ultra vires,” we need to say, “You have a political problem and you need to address that by an election”. All this Bill does from  that point of view is postpone the date of that election, because it would not be acceptable to go to any form of direct rule at any stage without an election. All we are doing is postponing it.
I accept that November, December and January are not very good months for an election. I also accept that we might be preoccupied with other things by the time February and March come round, so I understand the provisions, but this is not the first time that the warning has come. This is not the first time I have asked for an election. Will the Minister, in his response, indicate why it has not been possible to have an election during any of the period of time when the election should have been held?
We may well come to the situation that the noble Lord, Lord Adonis, has mentioned: we go through this period, there is still no agreement; we have an election, there is still no agreement. What happens then? The point that the noble Lord, Lord Adonis, needs to pay attention to is that we do not simply return to Westminster sovereignty. Why? Because we have an internationally binding treaty with the Republic of Ireland. That means that if there is to be any change or any development, it would have to be in discussions with the Irish Government. I think it unlikely that they are going to agree to a simple matter of direct rule. I think it much more likely that you would move to a form of direct rule in which there would be some clear acknowledgement of input from the Irish Government. That has been the trajectory for the last 25 or 30 years and I think it is the much more likely way out of this problem if the Northern Ireland political parties are not able to find a way of moving. That is the trajectory: this makes it a transition rather than a settlement. Much more could be said about that and I trust that we will be able to do so when we have the opportunity of a wider debate.
On Clause 4, the noble Lord, Lord Trimble, has pointed out, I think correctly, that much could be done by way of guidance under the current legal system. I well recall, as a young psychiatrist, having to do assessments on women needing abortions for reasons of their mental health, but that was tightened once people said, “We need some kind of guidance”. It would be entirely possible, legal and appropriate for the Secretary of State to look at the guidance that is being issued on the current law. But there is another matter that could be dealt with entirely legally, and I ask the Minister to respond to this if possible, if not this evening then at another time. What is to stop the Secretary of State, on these two issues that have been referred to, putting proposals forward for referendums, so that we would not be dependent on particular political parties in hock to minorities, or on opinion polls? We could ask the people of Northern Ireland whether they want to make a change to the abortion law or the law on gay marriage. That would not be undermining devolution but saying that, if elected representatives do not put themselves in a position to fulfil devolution, we do not ignore the people of Northern Ireland, nor human rights law, but we ask them to give their view. Is there anything to stop the Secretary of State making a recommendation that there should be referendums—non-binding, but nevertheless advisory referendums?
These are two issues on which there is deep disagreement between Sinn Féin and the DUP regarding the resumption of devolution. Therefore, it is actually important that they be addressed, whether by ourselves, the people of Northern Ireland, or otherwise. We are all preoccupied with Brexit now but I tell the House that, one way or another, elected representatives in Northern Ireland must get the matter resolved within a short period after Brexit. I know that Sinn Féin is keen to see itself in government in the South more than in the North, but when the noble Lord, Lord Trimble, asked what can be done that would induce Sinn Féin back into devolution, I can see a situation very clearly. If the minority Government in the South were to fall, if there were to be an election and Sinn Féin found itself in coalition Government in the south, which is entirely possible, despite what is said by the leaders of Fianna Fáil and Fine Gael, I can guarantee that you will have devolution at the drop of a hat, because Sinn Féin would very much like to be in government on both sides of the border at the same time.
This is still a moving picture. It may seem that watching politics in Northern Ireland is like watching paint dry, but eventually paint does dry, and we will come back to this issue again.

Viscount Brookeborough: My Lords, it is a pleasure to follow the noble Lord, Lord Alderdice. I have been scratching out bits and pieces that I was going to say and I was going to scratch out the bit about a referendum, but then I thought I would support it, since it had not come up. One of the problems we have in Northern Ireland is that we have a lot of politicians who say they are speaking for other people, but when you go around the country it is remarkable how few people they are really speaking for when they become hard line and morally demanding. That is all I shall say. Perhaps a referendum would at least settle it one way or another.
I welcome the Bill, although I think its scope is not nearly wide enough and it is very late in the day. The question has been asked: why it is an emergency, why it is urgent? The part of the Explanatory Memorandum entitled “Why is Fast-tracking necessary?” says “to provide clarity” and to “clarify the powers”. That does not mean that it is urgent. It means that Government sat on their backside and have done nothing since the Assembly crashed. Many of us in Northern Ireland would have said that that was incredibly predictable anyway. There seems to be very little forward thinking. If we look back for a moment at what happened in the Second World War under the coalition Government—I was not around—there was a single aim: to win the war, which they did. What happened afterwards? The whole thing burst apart. The Chuckle brothers, for once, had a single aim: to stop the violence. They stopped the violence and wanted power sharing. They got it, but what happens after a Government or a person achieves their aim? They make friends with their enemies to do so, but can they really work together in peace? There is a flaw there. I am not against devolved power or the devolved organisation  and co-operation, but it is difficult to believe that it will go on for ever. Therefore, many of us thought that it was fairly predictable.
There are people who think that the Assembly—I am not running it down—was the be-all and end-all of everything, and that all the decisions were made because they flowed out of it. They were not, it was not easy and it was commendable that people were trying to make it work. It is by no means a perfect system. It made government very difficult, and it made life in Northern Ireland very difficult. You could not get things done because there were contradictory signals the whole time. The Government have ignored these fundamental facts for far too long, and there has been little forward planning. When you plan forward, we were taught in the military—I know this is getting military—to carry out an appreciation, but to make fundamental assumptions and base those assumptions on fact. If you do not refer to them, you begin to run into trouble. The Government should refer to them more.
In addition, lately, the Prime Minister and the Taoiseach seem to have taken back seats—they have hardly engaged at all on this issue. Their predecessors were much more active and provided more leadership. We were grateful for it, and it provided a great deal more impetus to getting people together, without a shadow of a doubt—let alone a mediator, which is  for other people. I am pretty even on that. In future, we should demand much more involvement and determination from the Government and Westminster. The only democratically accountable body that we, as citizens in Northern Ireland, currently have is here, because the Assembly is not sitting. I also realise that we do not want direct rule; however, inasmuch as we are making laws today to enable certain things to happen, why are we not passing legislation to enable Ministers to be appointed from here for a short, specified length of time? That would not be direct rule: that would be interim management of the situation. I think it is quite a good idea, but others have thought about it and binned it a hundred times. It would be time-limited in the same way that the Bill is. We would then avoid this whole issue of Civil Service responsibility and power, and judicial reviews. This is obviously a minefield and it is very difficult. The Civil Service is outstanding, but we are pressurising it into making decisions on which there will be comeback. It would also mean that policy introduction would be current, not retrospective, as it tends to be at the moment, taking a long time.
Perhaps all this lack of attention, lack of action and legislation with limited scope is intended not to upset the two main parties—the DUP and Sinn Féin—and therefore achieve a return to Stormont. Again, I say to the Secretary of State and the Government—who say, “This is our aim”—that of course it is their aim. They say, “This is our wish, we believe it will happen”, to which I say, “Face the fundamental facts”. Enough people have pointed them out today and I certainly do not need to go into all that detail.
Personally, I believe that Sinn Féin has no intention of going back until after Brexit and possibly later discussions further down the Brexit road. It is waiting  for the wheels to fall off this wagon and it wants to pick something up. If you were in Sinn Féin’s situation and wanted a united Ireland, what would you do? You would do exactly what it is doing. We should not be wasting dividend or any bonuses on Sinn Féin at the moment. You can use them only once and if you use them and do not get what you want, the next time round you have to leave it the heirlooms. We should not be going down that route. As has been said, the DUP has its own problems. It is not entirely one-sided but it appears that in that context Sinn Féin will say no.
The people of Northern Ireland, from all communities, feel totally frustrated and demoralised, with little hope of any progress. Somebody said—it may have been the noble Lord, Lord Empey—that people are not happy and everyone thinks that devolution and the Assembly are wonderful. I can tell your Lordships that people in Northern Ireland do not say that, because devolution has not worked for them, and that is that.
One has to remember that the vast majority of people—Catholic, Protestant, Muslim or whatever—are for peace, for a quiet time and for their own government. However, added to that is the number of people from not only Great Britain but Northern Ireland who served in the Armed Forces, and now our veterans are being hounded, when every one of them volunteered to serve—to lay down their lives if necessary—for our peace. Let us not squander all this by pussyfooting round those who brought about the Troubles. We need—from the Government especially—leadership, determination and legislation with the required scope until we get our Assembly and Executive back, but it has to work properly.

Lord Rogan: My Lords, I welcome the opportunity to contribute to this debate but, like others, I wish it was unnecessary. As the noble Lord, Lord Duncan, said, most of us would prefer not to be here today.
Earlier this year we celebrated the 20th anniversary of the Belfast agreement. Several noble Lords present in the Chamber played key roles in that remarkable achievement on Good Friday 1998, and should be very proud of what they did. But I am sure that,  like me, they can barely believe that, two decades  on, Northern Ireland does not have a functioning Government. Yesterday in another place, the Chancellor of the Exchequer delivered his Budget Statement. Together with welcome funding for a Belfast city region deal, Mr Hammond announced an extra £320 million for the Northern Ireland Executive for 2020-21. However, as things stand tonight, it is difficult to envisage local Ministers being in place to spend it even then.
Several noble Lords mentioned the RHI inquiry, which has exposed levels of dysfunctionality inside the last Northern Ireland Executive that are shocking in the extreme. For month after month, we have heard tales of unelected DUP special advisers wielding considerably more power and authority at Stormont than most of their political masters. Last week evidence was produced which appeared to show that at least  one Sinn Féin/IRA Minister was acting under instructions—not from special advisers but from senior members of the IRA, if not the IRA Army Council itself. It is little wonder that disillusionment with the political process in Northern Ireland is so high. The people of Northern Ireland deserve much better.
It is 25 years ago that the UDA murdered seven people in the Rising Sun bar in Greysteel; another person died from his injuries. Last week we commemorated the 25th anniversary of the IRA bomb on the Shankill Road that claimed nine victims. Three further terrorist attacks took place in the seven days between the Shankill and the Greysteel atrocities, with yet another six people losing their lives.
Make no mistake: we are never going back to that. We have come so far since 1998. Tourists are flocking to Northern Ireland in record numbers. In recent years the Province has gained a global reputation as a prime location for film production and high-profile sporting events. Next year Royal Portrush will host the Open golf championship for the first time since 1951. Tickets for all four days of competitive play have sold out—the first time this has happened in the 148-year history of the event—and the first ball has not yet been struck. I might add that I own a holiday home in Portrush, and I have been inundated with requests to let it over the Open period.
We have so much in our favour, but we continue to lack a functional, proactive and accountable Government. It makes me very angry that we have found ourselves in this situation. At times it also leaves me feeling a little embarrassed. Here we are in the mother of Parliaments, where I am immensely proud to serve as a Deputy Speaker. I am honoured to travel on a fairly regular basis to meet parliamentarians in other parts of the world to discuss democracy. But when my hosts ask me what form of elected Administration we have in Northern Ireland, I have to tell them that we have none.
My sense of discomfort is not eased by the substance of the Bill before us today. I too have tremendous respect for the Northern Ireland Civil Service. Its staff serve with great skill, knowledge and commitment—but their task has been made almost impossible by the current absence of political direction. The Permanent Secretaries I have spoken to have no desire to be placed in the position in which they find themselves. They want a functioning Northern Ireland Executive to be formed. But, as the noble Lord, Lord Trimble, said, we are where we are, and although this legislation is far from ideal, I understand why Her Majesty’s Government have deemed it necessary—for now. I sincerely hope that it will not stay on the statute book for long.
I end my remarks with a request which I ask the Minister to convey on my behalf. Everyone in your Lordships’ House will be fully aware of the excellent work done by Marie Curie to support those living with terminal illness and their families. Marie Curie has been campaigning to reform the special rules determining eligibility for personal independence payments for terminally ill people. There are special rules for terminal illness under PIP, which allow terminally ill people to access their payments quickly and without a  face-to-face assessment. But only those with a diagnosis of six months or less to live are eligible to apply under these rules.
Experts from across the medical community have said that this is too restrictive. The difficulty in predicting life expectancy for many terminal illnesses means that legitimate claimants are being excluded from applying for PIP under the special rules. In June an independent review of PIP recommended that the six-month life expectancy criterion determining eligibility under the terminal illness rules be removed. However, in the absence of an Executive at Stormont, the changes required have not been actioned. The Secretary of State for Northern Ireland, Karen Bradley, has talked about allowing Northern Ireland departments to make decisions in the public interest. As Joan McEwan from Marie Curie Northern Ireland recently said:
“There can be no doubt that creating a fairer and more compassionate PIP system for terminally-ill people in Northern Ireland falls into this category”.
I agree, and I humbly invite the Minister to take Joan’s words on board.

Lord Lexden: My Lords, it is almost a year since the noble Lord, Lord Rogan, and I both had the honour to be appointed Deputy Speakers in your Lordships’ House. I have to say that he at once acquired a position of efficiency that I am still striving towards.
One of the many serious matters on which we have been reflecting today is the fact that for the best part of two years public services in Northern Ireland have been under the control of civil servants unaccountable to elected representatives, the first time that this has happened in any part of our country in the modern era. A visitor from another planet might perhaps wonder why those elected representatives serving as Ministers in the Northern Ireland Office cannot assume control temporarily, with additional appointments being made to cope with the greatly increased work. The answer that our political leaders would immediately give to such an impertinent visitor is of course that that would violate the devolution settlement. It is the settled conviction of the leaders of the main political parties that any amendment or modification of the devolved settlement in Northern Ireland, however slight or temporary, would bring disaster down upon us. Such dogmatic rigidity is unusual in the mainstream of British politics, where pragmatism normally reigns, to the benefit of our country.
The reality is that the Government are content that public services in Northern Ireland should remain for the time being in the hands of unaccountable civil servants. How fortunate we are that their integrity and impartiality are admired so widely and justifiably. They certainly deserve the clarification and confirmation of their powers that the Bill will provide so that they can continue to discharge their responsibilities successfully.
No new policy can be created, we have been firmly told; the Secretary of State said last week that the Bill was,
“about allowing civil servants to make decisions that have been part of a policy that has previously been agreed”.—[Official Report, Commons, 24/10/18; col. 300.]
That means, of course, policy agreed by the Northern Ireland Executive before it went out of business nearly two years ago. Time moves on and circumstances change, but policy remains in the state that the Executive left it nearly two years ago. Yet policy needs to advance, desperately and urgently, in those long-established services on which people depend for their daily health and well-being: health, education, housing and welfare. My noble friend Lord Empey, one of my greatest friends in this House, has spoken with passion on several occasions, including this afternoon in what the noble Lord, Lord Adonis, rightly described as a brilliant speech, about the appalling NHS waiting lists in the Province. My noble friend has suggested that the Northern Ireland Office should assume responsibility purely temporarily basis to tackle this crisis, a point endorsed by other noble Lords. “Oh no,” comes the reply, “that would breach the devolution settlement”, as if it were holy writ. Can it be right that our fellow countrymen and women in Ulster should suffer such distress—there are many other examples, some of which have been mentioned today—when a remedy could be supplied by the Government, who have the ultimate responsibility for the entire country?
In all this, one very important point tends to be overlooked: the Northern Ireland Assembly is the Province’s upper tier of local government as well as a devolved legislative body. One of the last acts of the Stormont Parliament of 1921 to 1972 was to make provision for the transfer of all the main local government services, on the very sensible grounds that Northern Ireland was not of sufficient size to warrant a range of county and county borough councils as well as Stormont itself. Today only very minor powers are exercised by Northern Ireland’s lower tier of local government, its district councils. Does Northern Ireland really need to be completely deprived of democratic oversight of all its main local government services because an Executive cannot be formed to exercise devolved legislative powers?
The creation of some form of interim committee structure in the Northern Ireland Assembly elected last year has been urged on several occasions by my noble friend Lord Cormack—who is not in his seat  at the moment—drawing on his experiences as a distinguished former chairman of the Northern Ireland Select Committee in another place. The fertile mind of my noble friend Lord Trimble might perhaps also be moving in this direction. He has spoken, as he reminded us, of various possibilities in the past and we look forward to hearing more from him later. Some such arrangement would help rescue local government from the democratic limbo into which it was cast when the Executive collapsed.
Two issues of human rights, about which many people are now deeply concerned, loom large in this debate. I have frequently called for the extension of same-sex marriage to Northern Ireland—an issue which the noble Lord, Lord Hayward, has recently associated himself with by introducing a Bill in your Lordships’ House, and in which the noble Lord, Lord Adonis,  is now taking a welcome interest. I hold to the straightforward unionist principle that the same basic rights should apply throughout our country. On same-sex marriage, opinion polls in Northern Ireland are  overwhelmingly in favour of bringing Northern Ireland into line with the rest of the country. The Assembly voted for it before its collapse. Would it be appropriate to seek a further vote in the Assembly elected last year to provide the strongest possible basis on which to proceed in this Parliament in the absence of devolved government? Should abortion—on which feelings run so high in all parts of the country—be treated in the same manner or, as the noble Lord, Lord Alderdice, suggested, should there be a referendum? These points need serious consideration.
I make one further point. How much better things would be if we had a common core of human rights throughout our unitary state—our “precious union”, as Mrs May referred to it. That would be a matter, perhaps, on which a Select Committee of your Lordships’ House could usefully deliberate. I reach one simple conclusion: the successful government of Northern Ireland in the conditions that exist today, and which we must expect to endure, requires rather more imaginative policy-making than is currently being practised.

Lord Maginnis of Drumglass: My Lords, as someone who contributed actively to the creation of the Belfast agreement in 1998 it is galling to find myself standing here today endeavouring to find the slightest merit in this belated effort to compensate for the failure of the Northern Ireland Assembly. The harsh reality is that this Bill is but a camouflaged attempt to humour those who do little more than continue the attempts of the Provisional IRA, which was defeated in 1994 at huge cost—not least in the lives of hundreds of innocent men, women and children over the previous 25 years. I refer, of course, to Sinn Féin.
On top of that we see from the results of the recent presidential elections in the Republic the diminishing standing of Sinn Féin overall. It would be bad enough if we merely had Sinn Féin trying to “legalise” the Irish language—which has been financed and sponsored successfully for as long as I can remember—but the idea of creating the basis for pro rata usage in our courts, councils, Civil Service and the like, is an extravagance our 1.8 million population simply cannot afford or facilitate.
The long-overdue compensation for abused children still awaits settlement. We should be getting our priorities right and I would like immediate reassurance in that respect. Remember that the victims are ageing and dying so this is a matter of urgency—or should be. On the subject of compensation for injury, how does a person injured in what has become known as “Bloody Sunday” receive around £500,000 in damages while I do not know of a single IRA victim—soldier or civilian—who has received anything comparable? Is there a delusion in the Government that they can buy stability?
This Bill appears to provide for the replacement of the democratic process by an unaccountable Civil Service. Let me give an example of that unaccountability from personal experience, and I begin by reminding noble Lords that the Civil Service is composed of some who are just as bigoted as, albeit publicly accountable, politicians.
About five years ago, I applied to have my driving licence renewed and, being diabetic, I provided a letter from my GP as to my fitness. However a Mr Paul Duffy rejected my application, unless I sent all my medical records to him. I appealed the decision but sought agreement to bring my medical records to the appropriate doctor and then bring them home again. I was told, “We don’t employ a doctor in the department. Your medical records will be retained safely in my office”.
Having had 10 attempts made to assassinate me between 1970 and 1974, there was no way I was going to risk my safety by providing details of my routine visits to my diabetes and cancer clinics, so I again renewed my appeal. I cleared myself on that basis with my insurance company but had to wait 22 months to get my licence. It did not end there. Being notified at last, by Paul Duffy, that my new licence was available, I collected it from him on 6 May—note that date—2015. Mr Duffy, it turned out, watched me drive off with my new licence in my pocket, and immediately phoned the police to report having seen me driving without a licence. When the police called to see me that evening, we discovered that the licence I had received earlier that day had been post-dated to 7 May. Technically, I had been conned. I had no licence until the following day. To cut that long story short, the judge who heard my case threw it out in about two minutes.
The sequel, however, has a relevance to this Bill in so far as I decided to complain to the departmental head, Peter May, who curtly informed me by letter that he had the utmost confidence in Paul Duffy. Peter May has subsequently been transferred as head of the Northern Ireland Department of Justice. I apologise to noble Lords for having had to recount this experience, but this is the sort of administrator we are being asked to impose on Northern Ireland—and it does not end there. David Stirling was Permanent Secretary of the department at the time of the RHI debacle and we have seen his dire performance at the RHI inquiry. He now describes himself as head of the Civil Service in Northern Ireland. Who actually appointed him and to whom does he, and will he, report?
There is so much room for potential disaster in this proposed Bill, but perhaps my major point should be to ask on how many occasions the Secretary of State for Northern Ireland has actually met and consulted the Northern Ireland Peers who sit in this Chamber. They are directly and indirectly the people who best understand Northern Ireland, both pre and post the Belfast agreement.
My final point must be what I will call the Stella Creasy aberration. I am one who cannot accept that “rights” should have priority over what is “right”. I am ashamed that Great Britain panders to a reluctant mother’s pride or social convenience, so that we so casually relegate a potential life to the incinerator. As the father of four and the grandfather of seven I have always believed that life is sacred. It is why I, with the late Enoch Powell, voted for the abolition of the death penalty when it was not something the grass roots sought. There is enough potential for disaster in this Bill without adding something that is so offensive to a majority across the traditions in Northern Ireland.

Baroness O'Loan: I declare an interest. My husband is the chair of arc21, the organisation created by six district councils in Northern Ireland responsible for addressing the problem of waste disposal, and made the planning application that led ultimately to the Buick judgment, which has been referred to repeatedly both in this House and in the other place, and is one of the reasons for the legislation we are debating today.
I am sure that everybody in your Lordships’ House regrets the situation that prevails in Northern Ireland. It really is profoundly difficult—almost two years with no legislature, and things are challenging. Members of the other place and of this House have articulated the various issues which are stalled as a result of the situation, not least the major infrastructure projects, the commencement of which would provide employment, therefore contributing to the economy—an economy that is seriously depleted. I see no purpose in repeating that list. It is a difficulty compounded even more by the fact that there is no legislature and no Executive to consult on matters relating to Brexit, as the noble Lord, Lord Adonis, said. Brexit is probably regarded by the people of Northern Ireland as the greatest hazard they face at present, for a variety of reasons. I shall come back to that in a moment.
However, I want to address a matter raised by the noble Viscount, Lord Brookeborough, who is not in his place, but for whom I have the greatest respect. He said that there must be an end to the hounding of veterans. I have to say that there is no hounding of veterans. There are investigations in Northern Ireland into unsolved killings. When somebody is suspected of having been involved in a killing, it is right and proper, and due process in law, that those persons be investigated. That is what is happening. I personally have been involved in the investigation of matters where both military and former RUC personnel have been involved. I know that those who serve in the forces do a very difficult job, and I speak from the perspective of one whose brother served in Northern Ireland in the 1980s, and whose nephew, aged 18, went to Iraq in the British Armed Forces and lost his leg six months later right up to the groin, and suffered multiple other injuries. I speak as one whose other nephew has served in Her Majesty’s forces for coming up to 22 years in Iraq, Afghanistan and other places, so I am not in any way attempting to attack Her Majesty’s forces. In a country which has had the experiences of Northern Ireland, however, it is important that there is no abrogation of the rule of law. It is profoundly important that we adhere to the rule of law.
This measure is clearly seen as necessary to address the lacuna which has been referred to repeatedly. It is legitimate to question the rushing through of this Bill without thought of the normal discussion, analysis and scrutiny necessary, particularly in the delicate situation which is life in Northern Ireland today. The Select Committee on the Constitution rightly raised various issues, not least the breadth of the power which would be afforded to Ministers and civil servants, the lack of clear lines of accountability and the retrospective effect of the Clause 3 provisions, which were described as “irregular and concerning”. It went on to say that,
“a Bill with such characteristics being fast-tracked through its legislative stages in Parliament is undesirable”.
The Minister referred to the fact that it was being fast-tracked. He did not, however, explain why it is being fast-tracked at such a pace. Our peace reposes on the basis of the Good Friday agreement—in our divided way, some call it the Belfast agreement—and the consequential legislation. The Northern Ireland Act 1998, in which I am sure many noble Lords played a part, was an Act designed to make new provision for the Government of Northern Ireland, for the purpose of implementing the Good Friday/Belfast agreement. The consequential legislation enabled a complex, multi-faceted construct, which was designed as best possible to ensure the delivery of the principles of the Good Friday agreement. The noble Lord, Lord Alderdice, referred to the involvement of another state in the creation of that agreement. The construct we now have was very hard won, and trust grew gradually and sometimes painfully over the years—particularly 1998 to 2007. Interestingly, trust grew despite the suspension of the devolved institution from October 2002 until 8 May 2007. We were still able to work—myself included as police ombudsman—to enable the constitutional process to have its full impact in Northern Ireland. That was difficult, challenging and, on occasion, dangerous work. Policing and justice powers were devolved only on 12 April 2010. It is all very new and must be treated with great care.
There may be a perception in your Lordships’ House, and in the wider community, that Northern Ireland is solved. That it is far from solved is demonstrated by the fact that, once again, we are in a position in which there is no mechanism to run our devolved Government. It is also demonstrated by the fact that during 2016-17 —the last year for which we have security statistics—there were five security-related deaths, 61 shooting incidents, 29 bombing incidents, 66 casualties from paramilitary- style assaults and 28 paramilitary-style shootings,  and 75 kilograms of explosives and 2,635 rounds of ammunition were seized. That was the largest quantity of explosives seized since 2006.
It is not all over, and I do not say that with anything other than distress. I personally have suffered in the Troubles; my family, many of my friends and many of the people I worked with have suffered. As police ombudsman, I sat and listened to story after story. I remember one family who came in where the 11 year-old daughter had been left with her two brothers, Rory and Gerard, who were 18 and 22. Their parents had gone out to mass. Róisín had been celebrating her 11th birthday when the gunmen came in and shot her two brothers dead in front of her. You would have to have a heart of stone not to care about things like this, so we need to remember that the situation can change very rapidly in Northern Ireland.
We need to be conscious that, when the talk about the border is so challenging and when no one really knows what is going to happen, this is a difficult time. I do not want to exaggerate, but it is a dangerous time. I have driven across the border twice in the past couple of weeks and will again next week. As you cross the border, you remember what it was like when there were checkpoints and things like that. I do not envisage  military checkpoints, but look at the border between Canada and America, and borders between the European Union and some of its non-member states—you see queues and time spent. We do not need all that could happen to us—the social, economic and political cost —were it to come to some kind of hard border in Northern Ireland.
It is in the context of the uncertainties of Brexit and the failure to address the problems in Northern Ireland that the Government are taking powers to themselves. I grant that they are limited powers and in a statute that will have effect for only a limited period, but to many it will seem like shadow direct rule.
I make no comment on the extension of the time for the appointment of an Executive, other than to observe that the power to extend the period seems to have a maximum life of up to August 2019, by which time we will have been without proper governance for two years and eight months. I know why our two main elected parties, the DUP and Sinn Féin, say that they cannot go into government, but the people of Northern Ireland are being badly failed by the stand-off. It is surely incumbent on those parties, and consistent with democracy, that they lay aside these issues temporarily, go into government and use democratic means to resolve those problems as best they can—that is what democracies do.
We want government decisions made by elected politicians, not by spads on the one side—as we have heard in relation to the RHI agreement—or on the other at the headquarters of Sinn Féin, Connolly House, as I think the noble Lord, Lord Rogan, pointed out. The Executive collapsed because Martin McGuinness resigned from the Government in the wake of the RHI crisis—the green energy scheme. That is now going to cost taxpayers up to £490 million. The RHI scheme has been the subject of a public inquiry, very ably chaired by Sir Patrick Coghlin, who has heard testimony from those involved that was dreadful to listen to. It is astonishing to see who is following the RHI inquiry broadcasts in Northern Ireland. I know of women who watched it intently while doing their ironing. Never before has a public inquiry attracted quite so much interest among the general population.
Our most senior civil servants have said that spads “were in charge” following the reestablishment of the Assembly in 2007. We know that civil servants did not do ordinary things like keeping minutes of meetings, and were not informed about issues of which the spads were aware. We know that the Minister who presented the renewable heat incentive scheme regulations had not even read them when she brought them to the Assembly and asked MLAs to vote on them. So it goes on, but the story has been told and Sir Patrick will report, so there is no more excuse—it is dealt with. Now is the time for the DUP and Sinn Féin to go back into government, fight for the cause of Northern Ireland together and ensure proper governance.
I want to ask the Minister again: what is the urgency that required this Bill to pass through the other place in one day and through your Lordships’ House in such a rush? This is not an emergency situation. There is no sudden threat to the economy. There is no immediate terrorist threat. What is the reason for the haste?
The Act enables Northern Ireland civil servants to exercise departmental functions if it is in the public interest to do so, and will confer on the Secretary of State a duty to publish guidance on the exercise of functions, including the principles to be taken into account in deciding whether to exercise a function. The Secretary of State made it clear in the other place, as the Minister has, that this Bill was introduced because,
“we have to enable public services to continue to be delivered in Northern Ireland”.
The Secretary of State said that the Bill,
“will allow decisions to be taken by civil servants who have felt unable to do so since the Buick appeal was heard. We need to make sure that those civil servants can take those decisions, but this is not about their making major policy decisions or becoming lawmakers”.—[Official Report, Commons, 24/10/18; col. 381.]
So far, so good, and that was what the Minister was telling us, until he came to Clause 4, which goes way beyond the position that the Government have taken. In a situation in where those who voted to amend the Bill in this way hold no seats representing anyone in Northern Ireland, where neither Conservatives nor Labour have an MP, there can be no proper accountability for decisions like that. Abortion—I place it on the record yet again—is not a human right. There is  a right to life; there is no right to kill the unborn  child in the womb. There has been no declaration  of incompatibility in courts in Northern Ireland. Somebody said that we do not have a common set of human rights, but we do; they are established under the European Convention on Human Rights, and we are signatories.

Viscount Younger of Leckie: I am sorry to interrupt the noble Baroness. Although this is not a time-limited debate, might she consider concluding her remarks pretty quickly, given that the guide time is six minutes?

Baroness O'Loan: I am coming to an end.
Most recently, in June the noble Lord, Lord O’Shaughnessy, gave me an assurance that the intention of the Government and the NIO,
“is to restore a power-sharing agreement and arrangement in Northern Ireland so that it will be up to the people of Northern Ireland and their elected officials to decide on abortion policy”.—[Official Report, 6/6/18; col. 1312.]
It cannot be compatible with the rule of law for a Secretary of State to be required by their Government and legislature to issue guidance which is not consistent with the law of the land. That is what would happen if the Bill were given effect. I have every sympathy with calls to give effect to the findings of the public inquiries into historical institutional abuse and hyponatremia-related deaths, and to give help to victims of the Troubles. However, I have not heard anyone advocating for Clause 4. I have not heard anyone advocating for direct rule, as suggested by other noble Lords; that is not the answer. We see Sinn Féin looking towards a referendum on a united Ireland, a profoundly important issue which does not commend itself to many of our population. We need action to bring the people together and that is what I ask of the Secretary of State.

Baroness Stroud: My Lords, I add my voice to those of noble Lords who expressed their sadness that we are, once again, in this place. Given the time, I will concentrate on Clause 4, which was introduced to this Bill by amendment in the other place. I question the clause for two main reasons. First, it represents a serious overreaching of the powers of Westminster. Secondly, as the House has heard, the insertion of this amendment is a misinterpretation of the role of the courts in relation to changing primary legislation.
Clause 4 represents a serious overreaching of the powers of Westminster and is not sensitive to the current reality of Northern Ireland politics. If we were in a position where there was no chance of devolved government being restored, it might be appropriate for Westminster to intervene on sensitive devolved matters. However, as this House has repeatedly expressed this afternoon, that is patently not the case. Most people in Northern Ireland believe that there is a good chance that devolved government will be restored once the main Brexit decisions have been made. The prospect of a fully functioning Stormont in 2019 is not beyond the bounds of possibility, and we should do nothing to put it there. Indeed, the Bill is premised on that hope. It is not advisable for Westminster to intervene on a devolved policy matter for the first time since the advent of Northern Ireland in 1921.
It is also understood that this is a matter where the people of Northern Ireland are known to feel strongly. As we have heard, recent polling shows a strong desire for abortion law to be set by the democratically elected representatives of Northern Ireland. For example, a recent ComRes poll found that 64% of people—and 66% of women—in Northern Ireland believe it would be wrong for Westminster to legislate on this issue at this time. Those proposing these amendments seem a little more concerned to make progress on this issue while the Assembly is down than to get power sharing back up and running again. I firmly believe that the steps that we in Westminster take at this time should be guided by one overriding consideration—whether our work will help or hinder the restoration of power sharing. Will this clause hasten the return of a functioning Executive and Assembly? Will it build the necessary trust, or hinder it? The answer is pretty self-evident, given the culture and nature of Northern Ireland. Trust grows slowly but can be quickly decimated.
Secondly, as noble Lords have noted, the sections of the law referred to in this clause govern the law on abortion, as interpreted by the courts. These provisions currently restrict legal abortions in Northern Ireland to situations where the life of the mother is at risk and continuing the pregnancy would adversely affect her physical or mental health in a manner that is “real and serious” and “permanent or long-term”. As the noble and learned Baroness, Lady Butler-Sloss, so eloquently stated, it is clear that Clause 4 rests on a misunderstanding about changing primary legislation. Although the Northern Ireland Assembly is temporarily suspended, abortion law remains devolved, as we have heard many times this afternoon. Only on 10 February 2016,  the Assembly debated changing the law; the Assembly voted not to change the law in either of these situations. This is a recent debate.
This June, the Supreme Court ruled on a case in Northern Ireland on the same narrow scope of abortions that the Assembly had debated in 2016. It rejected  the appeal and did not make any declarations of incompatibility with the current law in Northern Ireland and the European Convention on Human Rights. The notion that the Secretary of State should now produce guidance to impact the conduct of officials based on non- binding reflections of the courts rather than on the law is deeply problematic. It establishes a concerning precedent that should not be sustained. The relevant guidance should not differ from that issued by the Executive in March 2016, which reflects the law as it stands.
The impact of the law in Northern Ireland today is interesting in certain respects and may be of interest to policymakers here. The commitment to the value of the life of both the unborn and the mother has helped to define the culture of Northern Ireland and, in part, to make Northern Ireland what it is today. This is illustrated by the publication of a report at the beginning of last year which used robust statistical methods to show that around 100,000 people are alive in Northern Ireland today who would not have been had the Province elected to embrace the Abortion Act back in 1967. It should not be surprising that a Province which has lost so many holds life to be so precious. The figure of 100,000 was attacked and complaints made to the Advertising Standards Authority. However, after a five-month investigation, and drawing on the advice of health economists, the ASA ruled in August last year that the figure was entirely reasonable. It is extraordinary to consider that 100,000 people are alive today and that their right to life is entirely consistent with human rights.
Clause 4 is deeply problematic, and I ask the Government for assurances that any guidance that they provide will instruct officials to respect the rule of law and the law as it stands in this area.

Lord Curry of Kirkharle: Noble Lords will be delighted to hear that I have slashed my speech by about 50%, in view of the time and the fact that other noble Lords have made comments very similar to mine, much more forcefully than I could have done. I too will speak about Clause 4 and I very much support the comments of other Peers on the matter. As a Christian, I agree with the noble Lord, Lord Alton, and the noble Baroness, Lady Stroud. I subscribe to the biblical view that human life is sacred from conception and that marriage is the union of one man and one woman for life. However, my views are not important; our views are not important. Many of us feel a great unease that this Bill is being used to force our views on the people of Northern Ireland. The last thing we should do at this time is intensify division in Northern Ireland and potentially mislead, as the noble and learned Baroness, Lady Butler-Sloss, mentioned earlier.
Yet here we are with a Bill which declares to the people of Northern Ireland that their laws are in breach of human rights, even though there is no  proper legal basis for saying so. Whatever views they hold on the substance of these issues, many people in Northern Ireland will find it quite improper that Westminster is attempting to force a particular view on them by the back door, in haste.
This issue is about the authority of this House and our parliamentary institutions to overrule delegated, devolved powers. I find that deeply concerning. Incidentally, the Northern Ireland Assembly has, even though it is not functioning at present, expressed a view and has voted on these matter within the past two years, as was mentioned earlier. According to the procedures that govern the Assembly under the terms of the Belfast Agreement, attempts to legalise abortion and same-sex marriage were not passed. We must give proper respect to the people, politicians and institutions of Northern Ireland and leave these matters to them.
These are incredibly sensitive matters for us to be trampling over with last-minute amendments to a Bill which was designed to be purely administrative and all about steadying the boat while the political parties in Northern Ireland try to negotiate a return to power sharing. Why in the world do we risk rocking the boat with Clause 4?
I am deeply concerned about the precedent that this creates. It could have serious consequences if we ignore and overrule devolved powers without having given this adequate debate. What authority do we have, when the devolved power-sharing Assembly is not functioning, to overrule the devolution agreement? This is a really important question—a point that was raised by the noble Lord, Lord Adonis. Without clarity on these issues, we should respect the fact that marriage and abortion are devolved in Northern Ireland to the Northern Ireland Assembly, so we should leave it to the Assembly and stop interfering.

Lord Hayward: My Lords, before I comment on Clause 4, to which the noble Lord, Lord Curry, and others have been referring, I pay credit to those Members of this House who fought and worked so hard to achieve the Belfast agreement some 20 years ago. I fall into the category of the noble Lord, Lord Rogan, if I can classify myself in that group, in that we should not underestimate the achievements of bringing to the Province peace and prosperity which continue today despite the problems which we are discussing. I say that having had the experience of members of my own family returning to Belfast only a few weeks ago because they had both the confidence and the desire to live in Belfast in a way that they had not had for many years. I hope that economically, while we debate the issues of this specific Bill, we do not talk down Northern Ireland, because it has a great potential.
I now move to Clause 4. It will come as no surprise to a number of Members that I wish to refer to it—the noble Lord, Lord Lexden, referred to my Private Member’s Bill earlier. The noble Lord, Lord Curry, just asked, “Why do we rock the boat?”. The answer is, “Because this affects people’s lives on a daily basis, and we have to do something about it”. Contrary to what the noble Baroness, Lady Stroud, said, we cannot just sit here and say, “There will be an Assembly. There will be an Executive. We will just disregard the  people until there is”. The discussion this afternoon has identified, over and over again, that we do not know when there will be an Assembly. We do not know when there will be an Executive. Conor McGinn in the other place and I have been pursuing an identical Private Member’s Bill. We will continue to do so. I remind the House, as the noble Lord, Lord Lexden, did, that in 2015 the majority of the Northern Ireland Assembly voted for same-sex marriage. I believe that, if there were an Assembly now, that that would be the case again today. Unfortunately, we do not have an Assembly or Executive to test that.
Nobody who introduces law should do so only because they know somebody who is going to be affected by it. We should try, as legislators, to cast our nets wide. It does, however, make it easier when we are aware of specific cases and the impact that our legislation would have upon individuals. When I made my maiden speech in this House, I referred to my involvement with the Kings Cross Steelers, the world’s first gay and inclusive rugby club. It happens that a fair number of the members of that club are from Northern Ireland, including John Henry, who captained the club a number of years ago. He and his brother were featured in the Belfast Telegraph earlier this year. We cannot say to those members of a rugby club based in London, “It is fine. You can get married here, but you cannot return home to Northern Ireland to get married as you could if you stay in this city”.
Last weekend, I was present at a gay wedding here in London. Of the two men involved, one had been brought up in Northern Ireland. He worked in this House for a number of years. We are saying to that person, “It is fine to get married in London but, by the way, you cannot decide to live and get married in Northern Ireland”. Is that really what we are proud of in this country? It is certainly not something of which I am proud. There are others whom we all know, or ought to know, who are affected similarly by the absence of same-sex marriage legislation in Northern Ireland. When I introduced my Private Member’s Bill in March this year, two were sat in the Gallery. There were other people present at the wedding where I was on Saturday.
I can understand, as the noble and learned Baroness, Lady Butler-Sloss, said, that it will have relatively little impact if we pass Clause 4, but it will have an impact in itself. It will send a message, a small but clear message, that we still care for people who face problems that our legislation is not dealing with, wherever they may be. I was very interested in the suggestions of the noble Lord, Lord Alderdice, of a number of different ways that we might find a solution to this problem.
I ask all parties not to stop with this Bill and this clause but to move rapidly to a change in the law that would be welcomed by so many people. It is not a question of people’s human rights; it is a British duty, and particularly our duty as legislators, to provide equality throughout my country.

Baroness Barker: My Lords, I am very pleased to follow the noble Lord, Lord Hayward, and I wish him all success with all his efforts to make sure that there is justice for our brothers and sisters throughout the United Kingdom.
I want to get back to the Minister’s opening speech. He said:
“Let me be clear that the Bill does not give the Northern Ireland departments new powers. Instead, it provides clarity on the exercise of existing powers”.
That is the point about Clause 4 that I wish to address. The purpose of Clause 4 is to allow the UK Parliament, in the absence of a Northern Ireland Executive, to scrutinise the impact of existing laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations. The clause requires the Secretary of State for Northern Ireland to provide clear guidance to Northern Ireland’s civil servants with regard to the operations of these laws and to update the House of Commons each quarter on how she plans to address the laws’ impact on human rights obligations. It does not change the law in Northern Ireland.
I say to the noble and learned Baroness, Lady Butler-Sloss, it may be that this has been misinterpreted, but I think that Stella Creasy MP, in introducing this in another place, could not have been clearer when she said that it did not change the law in Northern Ireland. If people who are opposed to it choose to misinterpret it and overstate it, that is a different matter, but nobody who has supported the inclusion of Clause 4 as it now stands has made that claim. People who object to the substance of it certainly have—that I would accept.
There have been recent court cases which have cast doubt on the compatibility of the current Northern Ireland law with convention rights. The Supreme Court case in the summer questioned whether the current law in Northern Ireland was in contravention of Article 8. There will be further cases later this year which will return to the Supreme Court. That is the reason that this is important. The noble Lord, Lord Morrow, and several other people have repeatedly returned to decisions that were made in 2016, but life goes on in Northern Ireland, and things which happen in people’s lives all the time are raising new cases which will go to law.
There is deep confusion about the current law in Northern Ireland, which is interpreted by professionals in very different ways, and that leads people to be charged under the law. In 2017, a man and a woman had to accept formal cautions under the Offences Against the Person Act 1861 because they were seeking solutions for the termination of a pregnancy because they could not do what the many hundreds of other women are forced to do, which is to leave Northern Ireland and come to the United Kingdom in order to obtain the rights which are perfectly afforded to other women in England and Wales. We know that a woman at the moment faces potential prosecution for purchasing abortion pills for her then 15 year-old daughter, who had been the subject of an abusive relationship and had been raped. She has been granted a judicial review to challenge the decision of the Public Prosecution Service to pursue a prosecution against her—which was the result of the sharing of her information by a medical professional. This is the sort of thing on which the people of Northern Ireland, and in particular professionals who engage in implementing the laws, need further guidance.
The noble and learned Lord, Lord Mackay, said that the Human Rights Act does not change law, and he is absolutely right—it does not. I put it to him that if it did, in line with the Supreme Court’s recent ruling on abortion law in Northern Ireland, reform of Sections 58 and 59 of the Offences Against the Person Act would have happened. But it will not, and it will not under this law, either. The amendment to the Bill made in the Commons allows the court to rule on the compatibility of our laws with convention rights, like the Supreme Court did in June 2018 when the noble and learned Lord, Lord Mance, found that deferring to the Assembly, which had not sat for 18 months, to reach its own conclusion was not an appropriate course, as the need for such an amendment is evident. He said:
“the present legislative position in Northern Ireland is untenable and intrinsically disproportionate”,
in relation to abortions in cases of rape, incest or foetal abnormality.
I will say the following about the devolution matter, as devolution has been used a lot in this debate. I point out to noble Lords that the amendment which now stands as Clause 4 was passed by a majority of the House of Commons, in which there are representatives whose commitment to devolution goes way beyond that of anybody else in this House. They chose to pass this law and did so by a significant majority, because they never saw the devolution settlement as a reason to abrogate the human rights of people across the United Kingdom. This is an important and necessary piece of legislation at the moment, which will enable women in Northern Ireland simply to access their human rights.

Lord Hay of Ballyore: My Lords, I very much welcome the Bill to the House this afternoon.
Before I come to the Bill, I shall take up a point that the noble Lord, Lord Adonis, mentioned. Some of us, as a party, would be supportive if he could convince all the parties in Northern Ireland to come with him with regard to discussing the Assembly meeting and a number of aspects, including Brexit. As a party, we would support that. I know that the noble Lord was recently in my own city of Londonderry, talking about the whole issue of Brexit, and I know he met a number of parties. Did he put that suggestion to Sinn Féin, as we would definitely support that in getting the Assembly up and running and to meet without an Executive? The noble Baroness, Lady O’Loan, suggested that both parties should set aside their differences and get the Assembly and the Executive up and running, and we would support that as well. At least it would be the start of getting devolution up and running in Northern Ireland once again. All the other parties would support that way forward but, once again, one party is creating a major problem.
As I said, I very much welcome the Bill. Although it is not perfect, it is what it is. Yes, there is consensus in this House but the best solution would be to have a working Assembly at Stormont, with local Ministers in place who were accountable to the people of Northern Ireland taking such decisions. But that is not the  situation, and I appreciate the situation that the Secretary of State has found herself in. The Bill has become necessary to ensure that public services continue to function in Northern Ireland and to allow civil servants to make decisions.
In the other House the Bill was described very much as a limited measure. I would describe it as a poor substitute for democratically elected politicians in Northern Ireland making decisions that affect the people they serve. The Bill is limited in what it can do and the powers it gives civil servants in Northern Ireland. Yes, it will enable the Civil Service to continue to run public services, but it will not make civil servants lawmakers, and they will not have the power to change policy decisions in Northern Ireland. Of course, the Bill also gives powers to the Secretary of State and Ministers to appoint people to public bodies in Northern Ireland. My only question for the Minister concerns people who are unsuccessful in being appointed to public bodies in Northern Ireland. Will there be a mechanism for them, so that they can appeal if they have a grievance over public appointments?
We know that the Bill is very much time-bound. There is a clear indication from the Government that they hope that by March 2019—or by August 2019, a further five months—the Executive and Assembly will be up and running. The Bill is very quiet about what will happen if that does not happen. Certainly, I should like to know about that from the Government, because the Secretary of State is running out of road as regards what more she can do as a Secretary of State to get the talks process on its way. I worry that the Bill is very silent on what might happen afterwards, if there is no agreement on getting an Executive and the Assembly up and running.
It is difficult to see how the Bill will resolve some of the major issues that Northern Ireland now faces. Education is in a serious situation. The principals of many schools will tell you that their budgets have been so stretched that they can no longer deliver the service they want to deliver. On health, too, a number of policies and policy decisions that need to be made are being sat on. Waiting lists are growing, and members of the public sometimes have to wait 12 hours to be seen at A&E departments. All of this is compounding, so real policy changes need to be made by Ministers to get these serious situations addressed. On infrastructure, economic development and inward investment in Northern Ireland, a number of issues are sitting there awaiting policy decisions on how we will move forward. The Bill is ambitious, although in many ways it is not, and the Government should have gone much further when the Bill came to the House.
There has been a sense of political vacuum in Northern Ireland since the collapse of the institutions. I hope—I know it is the hope of all Members of this and the other House—that we can get the Executive restored sooner rather than later. Our party is willing to listen to any suggestion that gets the Executive and the Assembly up and running. As a party, we have put forward a number of suggestions to the Secretary of State on how that might be done in a limited period, so that we can move to full devolution again in Northern Ireland.

Lord Kilclooney: My Lords, this has been a wide-ranging debate and I sympathise with the noble Lord, Lord Duncan, who has many problems to solve in Northern Ireland. When the noble and right reverend Lord, Lord Eames, commenced his speech he said, “Here we go again”, and I am afraid we could add, “We’ve heard it all before”. There were two exceptions. The noble Lord, Lord Adonis, came out in favour of direct rule, which was a step forward by the noble Lord. And we heard an interesting idea from the noble Lord, Lord Trimble, who has an amendment, which I look forward to hearing later in the evening. We then heard the astonishing news from the noble Lord, Lord Maginnis, that he had a driving licence, which will come as a great source of comfort to those who drive between Belfast and Dungannon on the M1.
Northern Ireland is a serious subject as well. Democracy is not just the rule of the majority; it is the rule of the majority with the consent of the minority. Because Northern Ireland politics are not based on economics or on social issues, and because the political division is between those of two different nationalities—those who claim to be Irish and the majority who claim to be British—there is a great division between the communities. That is why those of us who met in the discussions that led to the Belfast agreement agreed to a power-sharing devolved system of government  in Northern Ireland. We thank the noble Lord, Lord Murphy, for the role he played in getting that agreement. It is why, today, I repeat that I support the Belfast agreement and the idea of power-sharing devolution.
We meet in bad times, with the collapse of the Northern Ireland Executive. Strangely, I agree with the suggestion of the noble Lord, Lord Alderdice, about when the restoration of the Executive at Stormont might arise. It will not be just after Brexit; it will probably be after the Irish general election. I have said that for some time and, increasingly, people are beginning to accept it. Sinn Féin does not want responsibility for any unpopular decisions in Northern Ireland, and then to go into an election in the Republic of Ireland. The one question that arises from the contribution of the noble Lord, Lord Alderdice, concerns the doubt that has increased in the last week over the fall in the Sinn Féin vote in the Republic of Ireland during the recent presidential election. Its vote in the Republic fell dramatically from 10% to 5%. Apparently, a lot of the missing 5% voted for the sitting President Higgins and might return to Sinn Féin. If that is so, Sinn Féin, as the noble Lord, Lord Alderdice, suggested, may well be in a coalition Government in the Republic of Ireland. In such circumstances, it would then also like to be in a coalition Government at Stormont in Northern Ireland.
This Bill is necessary because projects have been delayed or dropped in Northern Ireland and jobs have been lost. The details of the projects that have been dropped have already been listed in this debate and there is no need to repeat them. It means that we need, immediately, an interim measure until there is a restoration of the Executive at Stormont, or indeed direct rule—that may be the final, fallback position. We have the Bill as an interim measure and I welcome it.
There are three subjects that I want to refer to briefly. The first is abortion. This is a very sensitive subject in Northern Ireland and one that, strangely enough, unites Protestants and Catholics. What do I hear, on the one rare occasion when Protestants and Catholics are united? The English want to wreck it. It amazes me. This is a devolved issue and it should be decided by the Northern Ireland Assembly. In a recent ComRes poll, 66% of Northern Ireland women wanted the question of abortion decided at Stormont and not imposed by Westminster. We must pay attention to the wishes of the Catholic and Protestant people in Northern Ireland. It would be wrong to impose English moral standards on the people of Northern Ireland.
Secondly, we had the Budget yesterday. From Northern Ireland’s point of view it is a welcome Budget. We particularly welcome the decision for a city deal for Belfast and the financial contributions that will be made towards that programme. We also heard that there is a city deal for the Derry and Strabane  council area—or the city of Londonderry. What is a disappointment to me, given where I live, is that the second-largest city council in Northern Ireland—the city of Armagh, Banbridge and Craigavon—has not even had the initiative to submit its claim for a city deal. I hope that will receive consideration in the very near future.
The third point, which was missing from the Budget and has not been mentioned in the debate on the Bill so far, is the need for an exemption to air passenger duty in Northern Ireland. I remember raising this some years ago, when we had a Sinn Féin Minister of Finance at Stormont. He was genuinely sympathetic to the idea. His name was Ó Muilleoir, if I can pronounce it correctly. He pointed out to me, in a reply, that it would probably cost the Northern Ireland Exchequer about £50 million from the block grant. If that is all that is involved, and since we have no road or land links between Northern Ireland and Great Britain, it is a special case. Sympathetic consideration should be given to the abolition of air passenger duty. This would certainly increase tourism in Northern Ireland and reduce the cost to families—our families in Northern Ireland are somewhat larger than those in England —of going abroad on holiday, or even going to England for holidays.
Last week, the noble Baroness, Lady Doocey, on the Liberal Democrat Benches, who always stresses her Republic of Ireland origins, said that the St Andrews agreement could not be changed, but it has been changed. The St Andrews agreement was an amendment to the Belfast agreement, and further amendments can be made. It is nothing new. One subject that needs to be addressed is one the noble Lord, Lord Bruce, mentioned at the outset: the petition of concern, which needs reconsideration. This concern should not apply matters of personal conscience, such as same-sex marriage or abortion. It should apply to economic and social policies—so that you do not have one community trying to impose its will on another, because that is the way life goes in Northern Ireland. It should not be abused or used by any party to stop legislation on same-sex marriage or abortion.
I look forward to the amendment of the noble Lord, Lord Trimble, and I hope that the next time we debate Northern Ireland it will not be, yet again, a case of, “We’ve heard it all before”.

Lord Murphy of Torfaen: My Lords, it is always a great pleasure to follow the noble Lord, Lord Kilclooney, particularly because of the important role that he played 20 years ago at the time of the Good Friday agreement.
The Opposition will not of course oppose the Bill. It is very important in clarifying the position of civil servants and allowing important and urgent decisions to be made, but it imposes on them quite a considerable personal burden. The shorter the time they have that burden, the better, because they are not elected. At the same time, the law will now clarify the position regarding planning application issues in Northern Ireland. It is important too that public appointments are made, because until now hugely significant appointments for the people of Northern Ireland have been frozen. That is obviously a part of the Bill that we very much support.
However, the thrust of the Bill is about the restoration of the Executive and the Assembly in Belfast. Although I say that we do not oppose the Government, we are not very happy about the situation with the current negotiations, or lack of them, which would lead to the restoration of the Assembly and Executive. It seems to me that there has been little urgency over the last months. It also seems that, by putting a final 10-month limit on the talks, we are in a sense accepting the principle of delay. That lack of urgency and the lack of an incentive to ensure that we have an Assembly and Executive up and running much more quickly than is envisaged by the terms of this Bill are disappointing.
Interestingly, the noble Lord, Lord Lexden, made the point that, because local government is so limited in its powers in Northern Ireland, not only what a regional government do but what local government in England, Wales and Scotland do as well is without democratic accountability, and as a consequence huge strain is put on the Good Friday agreement and the agreements that followed it. It is not just about an Assembly and an Executive; it is about the north-south arrangements too, because they fall if the Assembly falls. The whole point of getting the two communities together over all those years was that you would balance on the one hand the importance of the north-south institutions, which are extremely important to the nationalists, and on the other hand the importance of devolution in Northern Ireland, as well as east-west relations—the British-Irish Intergovernmental Conference has not met properly until recently. All these strands of the agreement went together. You could not pick and choose the ones that you liked; you had to accept them all. That is the problem today in Northern Ireland in getting those institutions up and running.
Sinn Féin makes a great deal of the fact that it believes that the principles of the Good Friday agreement, particularly with regard to equality and human rights,  are not being carried out in Northern Ireland. However, the agreement has also been breached by the Assembly not meeting. If Sinn Féin does not go into the Assembly and causes it not to function, that breaches the agreement too, and that is an important part of the negotiations that will follow this legislation.
The DUP should acknowledge that the RHI scheme caused much scandal in Northern Ireland. It should also acknowledge that the issues that Sinn Féin is complaining about, particularly with regard to the Irish language, can be resolved. If 20 years ago the whole apparatus and structure of the agreement that we all admire had depended on one single issue—the Irish language—it would not have happened. Far more significant issues than that had to be resolved at the time, but there are other ways in which you can restore the Assembly and still deal with the Irish language. Why can there not be an independent commission to make recommendations on the language? Why cannot people from Northern Ireland go to Wales and Scotland to see how the language legislation operates there? There are ways and means that can be examined but they have not been examined over the last months and years and they urgently need to be dealt with. The trouble is that you cannot legislate for trust—it is built up over years.
In Northern Ireland there is always a reason why you should not establish the Assembly at this time or that time. People say, “Oh, we can’t do it because of Brexit”, or “Ah, it’s not Brexit at all; it’s the general election in the Republic that will stop it”. And if it is not that, perhaps the local government elections in Northern Ireland will be a barrier. If we had listened to those sorts of arguments over 20 years, nothing would have been done in Northern Ireland, because there are always obstacles in front of us. There has to be a greater sense of urgency, and these obstacles, important though they are, have to be seen as part of the bigger picture.
I am glad that at the beginning of this rather long but interesting debate the Minister indicated that there are to be talks about talks, as they are not talking about talks at the moment. When they do talk about talks, perhaps they should think about a more imaginative way of holding them. They should be much more intense. They should be proper all-party talks, structured in the way that we have seen in the past—not the odd meeting in a party office here and there but proper talks around the table with everybody involved. There should also be an independent chair or mediator. That has been talked about for months now but there has been no movement on it. We would not have had what we did unless it had been for George Mitchell and his colleagues, and there are people who can be called upon to do that job.
Frankly, the two Prime Ministers and the two Governments have to do a lot more in getting people involved in the talks. The Minister will know that when talks were held in the past, the Prime Ministers from Dublin and London spent day in and day out, week in and week out, and month in and month out working to bring the parties together. In my view, there is no evidence that the two Prime Ministers, in dealing with what is, after all, an international treaty  between our two countries, are dealing with it as they could. I know that they have the problems of Brexit, which will overshadow things, but that is intertwined with the restoration. There are two sets of negotiations that affect Northern Ireland—one on Brexit and the border and the other on the restoration of the institutions—and both are getting nowhere. There has to be a greater intensity in the weeks ahead.
There is another way. Time after time we have had what you might call “away weeks” in which the parties are brought together—at St Andrews, for example, which worked, and at Leeds Castle, which did not—but I have seen no evidence of new thinking on this. I hope that the Bill will herald new thinking, new imagination and new ideas about how to bring this matter to an end. Otherwise, we will drift inexorably towards direct rule.
We have said it many times: if you establish direct rule, it is a devil of a job to get out of it again. I was a direct rule Minister for five years in total. I did not like it, and I have said that to your Lordships before. I did not want to take decisions on behalf of the people of Northern Ireland. It is for the people elected in Northern Ireland to do that job. However, with issues such as Clause 4 and so on, the longer this goes on, the greater the chance that this Parliament and this Government will have to take decisions for the people of Northern Ireland, and that would be a disaster for the people of Northern Ireland. It is not an ordinary Assembly like the ones in Edinburgh or Cardiff; it is different. It is an integral part of the peace process as well as the political process. We cannot go back to where we were. The only way is forward, and that, I hope, will start after this Bill is enacted.

Lord Duncan of Springbank: My Lords, to use the term “wide-ranging” for today’s debate would be an understatement. I shall try to do justice, as best I can, to each of the points that have been raised. I hope that noble Lords will forgive me if I miss any points, as that will not be deliberate, and there will be an opportunity to pick them up later.
I begin with the obvious statement that it is now 22 months since there has been a functioning Executive. If we are successful and secure the passage of the Bill today, and it takes the full five plus five months, it  will be 32 months since there has been a functioning Executive. That is an extraordinary period of time without functioning government, and I am drawn in particular to the remarks of the noble Lord, Lord Dunlop, who reminds us that while much is going on in Northern Ireland, much is now stuck in limbo. Whether it be corporation tax, questions of the north-south interconnector, the implementation of the Harper report, even the functioning of the joint ministerial committees, all are stuck in limbo, all are a loss for the people of Northern Ireland and this is a negative, not a positive. We cannot lose sight of that reality.
Of the three parts of the Bill, the first is designed to address this very issue. The noble Lord, Lord Murphy, paints a very clear picture: “What on earth are you going to do differently now? Otherwise, you run the risk of simply repeating that which has gone before”.  So we do need to be moving forward, and on the question of an independent mediator, we are exploring that. There needs to be change, and that is one example. In terms of how we configure the meetings, their frequency and intensity, whether it be home or away, or however we seek to do it, there needs to be a new momentum. This is now—I have said this before—the last point at which we can move this forward. It is not an easy thing to stand here; I listened with a wry smile when the noble Lord, Lord Empey, said I have an ability to say nothing with great conviction. That would be quite a talent, but I hope I can give a little bit more of something rather than nothing today.
The issue we are facing now is that we need—several noble Lords mentioned this—something which is not mechanical. I have spoken often about this agreement as being like an engine or a machine that involves engineers and mechanics. There is also a spirit inside it, and that spirit of co-operation needs to be there. I noted that one noble Lord said, “You cannot legislate for trust”. You cannot legislate for spirit either, but without it, you cannot get the engine working. That is the most telling thing of all.
The Government continue to invest in Northern Ireland. There are ambitious projects going forward. Yesterday’s Budget was a revelation regarding where we can see money going forward—both into the Belfast city deal and the Derry/Londonderry deal. To the noble Lord, Lord Kilclooney, I say, get Armagh to write to me now as they need to be part of the widest possible deal. The whole mosaic of Northern Ireland should be captured inside the city deal framework.
I say to the noble Lord, Lord Dubs, that the £320 million released under the Budget for co-operation within education is available now and will be spent in the time available. It is absolutely right that it should be so, but there is no point in pretending that this is a substitute for local decisions made by locally elected individuals. There must be a functioning and sustainable Executive who can carry with them the trust and certainty the people of Northern Ireland deserve.
The noble Lord, Lord Eames, reminds us that we have a near unique society which has gone through the Troubles in the widest and darkest possible sense, and that there are wounds to be healed. Those wounds cannot simply be healed by putting money into the Province—that is not where they come from. It is about a trust and belief that the institutions of Northern Ireland can function and deliver the outcomes the people deserve. Without that, there is almost no purpose in having the Executive at all.
There are three parts to the Bill before us. The first, although difficult to realise, is straightforward in one sense: it is creating a window of opportunity for those negotiations. The second is a challenge, and there is no point pretending otherwise: how do we ensure that the civil servants are able to function in such a way that they have confidence in taking decisions? One of the questions asked by a number of noble Lords is: what is the urgency for this Bill to go through so quickly? One of the answers is that there is now a backlog of decisions in Northern Ireland, which have not been taken because civil servants do not have the confidence to take them. Those are not decisions that usurp the  authority of Ministers. It is the quotidian, daily functioning decisions that must be taken to ensure good governance inside the Province. That is why we are issuing clear guidance—this is not an attempt to do direct rule lite. We have lodged the guidance in the Library, and noble Lords can read it and see where it is coming from.
We are ensuring that all those decisions taken by civil servants are fully transparent and are recorded and lodged each month, so we can see exactly what they are and understand what they are trying to do. Let us be frank about it: it will not allow civil servants to take bold, grand decisions which do not rest upon a solid foundation. We cannot ask those civil servants to display that level of courage. It is not appropriate to do so. That must rest with an elected Executive. A whole range of questions that we are all too familiar with will require that level of activity. I say to the people of Northern Ireland that the great shame right now is that this will not help those decisions to be taken. It will help the daily decisions to be taken with some confidence, but the bigger decisions await the arrival of a functioning Executive. That in itself is a serious challenge.
I have no desire to be critical of the Northern Ireland Civil Service; it is doing an extraordinary job in difficult circumstances. I note the circumstance that the noble Lord, Lord Maginnis, has raised once again, but the wider question of where that Civil Service stands is to be broadly applauded.
On the third part of the Bill, we have been very careful not to try to give a blanket power to my right honourable friend the Secretary of State to create appointments without due recourse to the affirmative procedure, which allows full scrutiny. We have tried to put on the face of the Bill only those appointments which are urgent and pressing and need to be made now. However, there are now other means whereby, in extremis and emergency, we can move forward under that approach.
Those are the three component parts of the Bill, but there is another part, which arrived in the other place. That was not at the behest of the UK Government, who did not seek that amendment. However, it was put forward, there was a vote, and that amendment has now come to us. It has not come through some illegitimate means, but through a proper means. One can debate what it is intended to achieve—and sometimes the interpretation granted by the media is a little unhelpful—so let me be as clear as I can be. I listened to the noble and learned Lord, Lord Mackay of Clashfern. The clause in question does not confer new powers within the established procedure. It does not allow, in the guidance which will be issued, the civil servants to upset, ignore or run in contravention to the law.
I note the useful and important comments made by the noble Lord, Lord Alderdice, about how guidance can be used in a sensible way to understand the law as it is today. As someone who comes from part of the kingdom which has a fully functioning devolved Government, I stress again that these decisions must be taken by the devolved Administration in the north of Ireland. There is no point in pretending we can usurp democracy in that fashion, simply because devolution  is not to our liking. Devolution must function even when it is not as we would like to see it, but rather, how it must be.
Let me also be clear that it is not the desire of the Government to push this to a vote in any sense at all, but rather to recognise that which is here with us today. The guidance itself will not in any way seek to undermine the functionality or reality of the law. It is important we understand what it will do. It is not our desire to move into an issue of conscience—this must rest with the individual Peers gathered in this House today, should it come to a vote.
We come to a very simple point, raised by the noble and learned Lord, Lord Mackay: irrespective of what emerges from the Supreme Court decision, which I do not doubt will emerge very soon, there will be a simple question of what that ruling means for the law. Ultimately, that new law will have to be made by the elected representatives of Northern Ireland, fully recognising all aspects of the community and that all individual voices need to be heard. It is not for us today to do that.
I turn briefly to the remarks made by my noble friend Lord Hayward. I am not unsympathetic to the point he makes about being able to send a message. Sometimes a message does indeed need to be sent, and sometimes it needs to be received too. I am not unsympathetic to that, but it is slightly different from what we must do here as a functioning legislature in that regard. I hope that will help us move that forward.
There are some other elements that we need to touch on very briefly. The question of the petition of concern has been raised. We are not averse to this being re-examined, resting broadly upon the principle of full engagement with all parties to ensure we can move it forward into a new but none the less fully supportive form. We would not be averse to that; how to achieve it is certainly something we can think about.
I listened with interest to the noble Lord, Lord Alderdice, who again raised some very interesting points that I would like to discuss with him further so that we might have an opportunity to fully explore some of those aspects. If he will forgive me, I would like to have that meeting afterwards. I will happily produce a note of that meeting so that it can be shared with all. I am not trying to keep secrets from the rest of your Lordships here gathered.
I say to the noble Lord, Lord Bruce, that I am very much aware of the questions that arise in Clause 3(7) regarding the functioning of the advice and guidance. It is not the ambition or intention to undermine or erode any aspect of the functioning of the human rights legislation as it applies to Northern Ireland. I am happy to give that categorical assurance right now, on the record.
I am also aware, as I look across the Benches, of the points raised by the noble Lord, Lord Dubs. I am conscious that we will not seek to eliminate the salaries of MLAs, who have a very real and serious function. They will be adjusted, as per earlier discussions that we have been party to, but it is not the ambition to remove them, nor to eliminate the salaries that rest on the assistants of those individuals. That will also be a  very important part. If he will forgive me I will write to him directly on the question of fostering refugees because I do not have the answer at my fingertips.
I am aware of the points raised by the noble Lord, Lord Alton of Liverpool, and I understand exactly where he is coming from. That is why I said earlier that this matter must be addressed by the people of Northern Ireland.
On the comments made by my noble friend Lord Trimble, I await with interest his amendment to understand what he intends. On the remarks of the noble Lord, Lord Adonis, I hope that I have given some measure of comfort on the question of mediation, and that we will be able to move forward. The question of a wider mechanism might well rest on something similar that is in the mind of my noble friend Lord Trimble. Let us see what emerges. We are not averse to looking at new methods to try to move these issues forward.
I could go on, but given the hour and that this is not the last time your Lordships will hear from me today, I will close. I say again that we hope that this can move forward in a sensible way and that we do not divide the House. If there are any issues that noble Lords wish to raise with me between Second Reading and Committee stage, I will be available for any discussions they might like to have. On that basis, I beg to move.
Bill read a second time and committed to a Committee of the Whole House.

Arrangement of Business
 - Announcement

Viscount Younger of Leckie: My Lords, it might be convenient for me to say a word about the Committee stage of the Northern Ireland Bill. The Public Bill Office will be taking amendments until an hour from now. Timings for Committee will be advertised on the annunciators after that point.

Extradition Treaty: UK and the  State of Kuwait
 - Motion to Take Note

Moved by Lord Collins of Highbury
That this House takes note of the Extradition Treaty between the United Kingdom and the State of Kuwait.

Lord Collins of Highbury: My Lords, I appreciate that this evening will potentially be a very long one. I do not anticipate taking up too much time. I am rather disappointed about the procedure being used relating to these Motions on treaties. I looked at the computer on Friday and noticed that there was a speakers’  list, which promptly disappeared. Speakers’ lists aid the business of the House. They encourage people   to participate. I can understand why there are some circumstances where lists are not used, but I hope that in the future the usual channels will consider it appropriate to have them.
I start by saying that Labour absolutely supports the use of extradition treaties, including with such states as the US which practise the death penalty, although we strongly believe that extradition should not take place where the subject could face the death penalty. Of course, the Extradition Act 2003 set  out the basis for the UK’s extradition policy. Part 1 implemented the European arrest warrant and Part 2 allows treaties with other states to be established. Under Part 2, the Secretary of State must decide whether to certify each individual request for extradition. Of course, the 2003 Act also stated that extradition is expressly prohibited where the subject could face the death penalty.
The UK’s extradition treaty with Kuwait specifies that extradition between the two states is permitted under certain circumstances, the first being that the offence attracts a maximum penalty of at least 12 months and the requesting state must establish a prima facie evidential case in respect of any person whom they wish to extradite. The agreement specifically refers to several grounds on which extradition must be refused. These include if,
“the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, sex or status, or political opinions, or that that person’s position may be prejudiced or his or her liberty restricted for any of those reasons”,
and if the extradition would breach human rights. Another element, of course, is if,
“the person whose extradition is sought could be, or has been sentenced to death”.
One of the first issues I want to raise is the fact that the penal code in Kuwait contains general provisions against debauchery. That means that it can punish lesbian and gay people, and fine and imprison them for up to six years simply for being gay. I have mentioned that the agreement specifically refers to the grounds on which extradition must be refused, but we can have a situation where someone was charged with an offence not related to their sexuality but a return to Kuwait might lead to abuse and further charges because their sexuality might become known or is likely to be known. There are horrific circumstances with some of the abuse that could take place in prison. Could the Minister give the House an assurance that, in such circumstances, an application will fail?
Human Rights Watch has raised concerns about the Kuwaiti justice system and claimed that, due to process violations, it makes it very difficult for defendants to get a fair trial. In fact, this week Labour MEPs have raised one such case that has had scant attention in the media, of Marsha Lazareva, Kuwait’s top woman CEO, who was jailed earlier this year for corruption following a trial in which the prosecution did not give her defence team full disclosure of incriminating documents and other evidence. In fact, the conditions for non-nationals such as Marsha Lazareva, who is Russian, are described by Human Rights Watch as “truly shocking” by those with experience of the prison   system in Kuwait. Accounts tell us of seven women to a cell, with clothes and food limited intentionally by prison officials who distribute to Kuwaitis first and foreigners second.
Human Rights Watch has also said that foreign women working in Kuwait are particularly vulnerable. They are particularly vulnerable to false accusations of theft, summary dismissal by employers, assault and even rape. Many women then face imprisonment and expulsion. Human Rights Watch has repeatedly raised concerns over the lack of a right to a free trial in Kuwait. Will the Minister tell us what, if any, actions the Government have taken to raise these concerns over due process with Kuwaiti officials, particularly in regard to negotiating this treaty?
On the death sentence, we on this side have criticised the Government for paving the way for two ISIS terrorists formerly of British citizenship to be extradited to the US and potentially executed. Sajid Javid, the Home Secretary, wrote to the US Attorney-General, Jeff Sessions, that he would not demand a death penalty assurance in this particular case. In a letter quoted by the Daily Telegraph, he wrote:
“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurance will be sought”.
“I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request. As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty”.
The reason for his letter, the Home Secretary said, was that US courts were better placed to handle foreign fighter cases because of the risk of legal challenge in the United Kingdom. Sajid Javid appears to have secretly and unilaterally abandoned Britain’s opposition to the death penalty. His actions will not simply impact on the lives of those two particular terrorists—whose actions were absolutely disgusting and appalling—but will impact on the lives of other Britons, including potentially innocent ones across the world. Will the Minister explain how the principles in the 2003 Act will be maintained, because I am not sure, in the light of the Home Secretary’s actions, how any assurances given can be seen as credible? His actions have the potential to undermine all of our efforts over many years to persuade countries such as the US, Iran and others to drop the death penalty.
On 25 January last year, Kuwait carried out seven executions by hanging for those convicted of violent crime: two nationals, including a member of the royal family, an Ethiopian woman, a Filipina woman, two Egyptian men and a Bangladeshi woman. The January 2017 executions are believed to be the most recent to have taken place in Kuwait. Prior to 2017, the last known executions took place in 2013, which themselves ended the de facto death penalty moratorium that had been in place since 2007. The 2017 executions took place in private, in stark contrast to the previous executions, which were before an invited media. Given that the Kuwaitis did not publicise these executions,  can we really be certain that no further executions have taken place since? I hope that the Minister will be able to assure us on that point.
In April 2017, we had the case of Fahad al-Rajaan, the former head of the Kuwaiti social security fund, arrested in London. This case has gained significant public attention in Kuwait, but there is little indication of how many other Kuwaiti nationals could potentially be extradited from the UK. Will the Minister tell us whether the Government have made an assessment as to how many Kuwaiti nationals in custody could be extradited on ratification of these treaties?
I have raised these issues not because we are opposed to the principle of this treaty but because we are genuinely concerned about our human rights policies and our commitment to seek the abolition of the death penalty. If the Home Secretary’s actions are considered, it looks like that commitment will be undermined, both in general and in the specific case of Kuwait. I beg to move.

Baroness Northover: My Lords, I thank the noble Lord, Lord Collins, for initiating this debate. It is important that treaties like this are scrutinised. This treaty was initialled by UK and Kuwaiti Ministers in November 2015, signed in December 2016, ratified by the Kuwaiti parliament in April 2017, but only laid before the UK Parliament in July 2018. I guess we had various other things that we were thinking about.
We know that there has been much engagement with Gulf states in recent years. In fact, the UK offered to host the first-ever meeting of the Gulf Cooperation Council outside the region. I understand that this is on hold because of the Saudi/UAE dispute with Qatar. The UK has put effort into increasing exports to the region. Exports to Kuwait rose 23% from 2017 to 2018, with goods and services valued at  £1.7 billion. Perhaps we should pay tribute here to the Prime Minister’s trade envoy to Kuwait, the noble Baroness, Lady Morris. If the UK leaves the EU, the Government have made it clear that they wish to have a free trade agreement with the GCC states. That has been made particularly difficult in relation to Saudi Arabia, with its involvement in Yemen, the blockade of Qatar, and of course, the murder of Jamal Khashoggi.
Set against some of its neighbours in the Gulf and the wider Middle East, Kuwait has often been seen by the Government as an example of moderation and political reform. A House of Commons Library paper from 2016 notes that Kuwait has,
“one of the liveliest and most influential parliaments in the region, with the power to cross examine ministers and significant influence over legislation”.
It is obviously good to hear that.
Nevertheless, as the noble Lord, Lord Collins, has pointed out, concerns have been expressed, most notably by Amnesty International and Human Rights Watch, about human rights and freedom of expression in Kuwait. Thus, Amnesty reports that in March, the UK-based writer and blogger Rania al-Saad was sentenced in her absence to three years in prison on charges of “insulting Saudi Arabia” on Twitter. Former MP Musallam al-Barrak was released in April after serving a two-year prison sentence for criticising the Government but continues to face other charges.
Amnesty further reports that the authorities have prosecuted and imprisoned government critics and online activists under penal code provisions that criminalise comments deemed offensive to the Emir or damaging to relations with neighbouring states. Human Rights Watch noted in its 2017 report:
“Provisions in Kuwait’s constitution, the national security law, and other legislation continue to restrict free speech, and were again used in 2017 to prosecute dissidents and stifle political dissent”.
It was noted, however, that Human Rights Watch was allowed access to and dialogue with the Government of Kuwait.
As the noble Lord, Lord Collins, also mentioned, Kuwait has recently used the death penalty. As he explained, in January 2017 Kuwait executed seven people, though it had not, as he pointed out, carried out any such executions since 2013. This is obviously a very worrying development, as he emphasised. There are, in addition, concerns about the independence of the judiciary and prospects for a fair trial. Thus, for example, in the case of the “al-Fintas group”, 13 men were charged in connection with WhatsApp discussions about video footage that appeared to show government members advocating the Emir’s removal from power. This case obviously causes concern. Amnesty concluded:
“The trial was marred by irregularities”.
Concern has also been expressed about the 2016 electronic media law which, as Amnesty argues,
“criminalises … criticism of the government, religious figureheads or foreign leaders”.
The Government’s overseas business risk assessment for Kuwait describes it as a “semi-democratic” country, which is an interesting way of putting it. Political parties are prohibited, or as the Government document carefully puts it:
“Political parties have not been legalised”.
The Emir “reserves the right” to dissolve the 50-member National Assembly. Criticism of the Emir is illegal. These are serious issues which must be considered when assessing this extradition treaty.
We understand that the Kuwaitis have been keen for the treaty to be implemented, arguing that corrupt former officials have relocated to London. Kuwait’s Minister of Justice commented when the extradition treaty was signed:
“it supports efforts to bring convicts and fugitives to justice, which in turn will help ameliorate Kuwait’s ties with the UK”.
The Speaker of the parliament stated:
“Kuwaitis will no longer see embezzlers of public funds roaming the streets of London and Britain”.
Indeed, as the noble Lord, Lord Collins, mentioned, in 2017 Britain arrested the former head of the social security fund, who was wanted on corruption charges. Although the extradition treaty had not yet been ratified, the extradition request was acceded to and the judge in this case ruled that the extradition could proceed. This case in fact showed that an extradition treaty was not required for individual extradition requests to be agreed by the Home Secretary.
In the light of this background, I have a number of questions for the Minister. What considerations in the UK-Kuwait relationship made this treaty a priority  for the UK? In what context was this treaty discussed, both bilaterally with Kuwait and internally within the UK Government? Were linkages made to progress on political reform and human rights? Are the Government generally using extradition treaties as a way of encouraging political reform? How have the Government kept the wider political situation in Kuwait under review since first initialling this treaty in 2015, with the changes that have been noted? Did commercial considerations, particularly if the UK were to leave the EU, play a part?
In addition, given that our international partners in some cases do not appreciate that our judiciary is genuinely independent, what potential fallout could we see for the relationship with Kuwait if extradition requests are refused on human rights grounds? What are the Government’s options to revoke or suspend a treaty if they see violations of human rights in the judicial system or have systemic concerns around freedom of speech and fair trials? Will they keep the extradition treaty under review? There is no bilateral extradition treaty now with Saudi Arabia, Oman or Bahrain. Are any such treaties in the pipeline?
Setting aside Kuwait-specific concerns, there has been concern around extradition policy over the last few years. As the Lords Extradition Law Committee stated in 2015,
“the system of seeking, accepting and monitoring assurances during the extradition process cannot guarantee the UK is meeting its human rights obligations”.
What review have the Government made of their policy in the light of those comments? The UK does have extradition treaties with countries where there are significant limitations on human rights and dubious judicial systems—for example, Uganda, Libya and Russia. It is important, therefore that this extradition treaty should be adequately scrutinised, and I thank the noble Lord, Lord Collins, again for ensuring that we are doing so. I look forward to the noble Baroness’s responses.

Baroness Goldie: My Lords, I am pleased to speak for the Government today on the important matter of extradition, a matter in which I know the House has taken a close interest over recent years. By way of introduction, I say to the noble Lord, Lord Collins, that I have observed his disquiet over procedure. In the small number of debates we have had on treaties—I think we had two before tonight—we have not had speakers’ lists, but I am prepared to take it up with the usual channels, because in terms of certainty, and so that people can make a judgment on whether they wish to participate in the debate, further information might be helpful. I undertake to relay that to my very good chum the Chief Whip and see what progress I can make.
I am grateful to the noble Lord, Lord Collins, for securing this debate to discuss a further step forward in enhancing the close relationship between the UK and an important and valued historical friend in the Middle East: Kuwait. Our co-operation with Kuwait in recent years has spanned the entire spectrum of the UK’s strategic priorities. It has focused on building  links between our economies through developing trade and investment, working together to counter the threat from extremism, radicalisation and terrorism that we both face, and continuing to enhance our close and valuable military relationship. Together, we also strive to support peace and stability in a changing region. Kuwait is a major donor in areas of conflict, providing humanitarian aid in Syria and Yemen, as well as supporting projects for the reconstruction of Iraq.
The UK has strongly supported Kuwait’s mediation efforts in recent talks in the Gulf and its support for de-escalation and Gulf unity has demonstrated its commitment to regional stability. As a non-permanent member of the United Nations Security Council since January 2018, Kuwait has also worked effectively alongside the UK, during which time Kuwait has arranged a fact-finding mission on the Rohingya crisis, supported sanctions against the DPRK and condemned the use of, or threat to use, chemical weapons following the appalling incident of the Salisbury poisoning in our own country. As a close friend, we are also able to offer support and advice, where appropriate, as Kuwait continues to develop its democracy, governance and human rights frameworks. I will come to this point and points specifically raised by noble Lords in the course of my comments.
The next important frontier in our co-operation with Kuwait is that of criminal justice. The noble Baroness, Lady Northover, asked about the context of all this. I have tried to explain that we value our very close relationship with Kuwait and we want to reach a mutually supportive situation in which we can each play our role in dealing with challenging issues that arise in the field of and in relation to criminal justice. That is why co-operation on criminal justice with Kuwait is very important.
In July, the Policing Minister laid before Parliament a package of judicial co-operation measures, comprising treaties on mutual legal assistance and extradition. Kuwait has acted with admirable swiftness to be ready to ratify both treaties. I am very pleased that they have now been laid before the House for the requisite number of sitting days to now allow the Government to move towards ratification. As your Lordships may be aware, the mutual legal assistance treaty needs no further legislation to be able to enter into force and will be ratified in the coming months.
In accordance with the provisions of the Extradition Act, Kuwait must be designated a Part 2 country before ratification of the latter treaty can take place. As the noble Baroness, Lady Northover, observed, there have been pressures on the parliamentary timetable with Brexit, but the Government intend to lay a statutory instrument to effect ratification as soon as the parliamentary timetable allows. Orders made under the Extradition Act are made under the affirmative procedure, so it will not be long before your Lordships have the opportunity to debate this treaty a second time. Work is proceeding on the drafting. As I say, the next task is to find a slot in the parliamentary timetable.
By way of general comment on extradition, the UK’s extradition framework is an essential tool for ensuring that those who seek to flee from their crimes  are not able to evade justice. In a world where crime and terrorism are no longer contained within national borders, the importance of ensuring effective co-operation on criminal justice has never been greater. We all share a deep respect for the fundamental principle that no one should be above the law. The extradition treaty we are discussing tonight is a further building block in an international structure that will facilitate our collective global ability to bear down on terrorism and serious organised crime. The Government are pleased to have the co-operation of Kuwait on this important issue.
The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, have tonight raised a number of issues relating to Kuwait’s human rights record and the continued use of the death penalty. Let me reaffirm: this Government are committed to upholding human rights and oppose the death penalty in all circumstances as a matter of principle. The safeguards available in the Extradition Act are strong and reliable in that respect. Extradition from the UK is not possible if it would be incompatible with a person’s human rights. The Home Secretary must not, in law, order an individual’s extradition if they have been, will be or could be sentenced to death. I hope that clarifies matters that naturally concerned the noble Lord, Lord Collins, and the noble Baroness.
On the broader issues raised, the Government of Kuwait respect our position on this matter and we have accordingly included provisions in the treaty before both Houses that make it entirely clear.
On human rights, the noble Lord, Lord Collins, referred to the position of LGBT persons in Kuwait. I was looking at the grounds for refusal in the treaty.

Lord Collins of Highbury: I am sorry to interrupt the Minister. I did read out the grounds and it did not seem clear that sexual orientation was covered, although there is a sentence referring to “sex and other”. Could she clarify that?

Baroness Goldie: I would take great pleasure in doing that. I am just talking about the first paragraph, Article 3(1)(a), which I think the noble Lord read out. My understanding is that the specific reference to sex, or indeed to status, is intended to ensure that persons are not wrongly persecuted for their sexual orientation and that extradition under this treaty shall be refused in any such cases. I hope that that clarifies the understanding of the position.

Lord Cashman: Can I seek a further reassurance? As regards the reference to “other” status, as in the UN Declaration of Human Rights, in my dealings with some African, Caribbean and Pacific countries I have noted that some significantly fail to recognise that “other” status includes sexual orientation.

Baroness Goldie: I have described the grounds on which extradition under this treaty would be refused. As your Lordships will be aware, the exercise of extradition is a matter for both the Home Secretary and the courts. The courts must consider the actual application. That is our interpretation of what the phrasing means.

Lord Collins of Highbury: My question did not relate specifically to crimes because of somebody’s sexuality. There can be circumstances where, if someone is being sent back to a country where homosexuality is illegal—and certainly homosexual acts are—and it becomes known that that person is gay, they might be accused or charged with one crime but could then be subject to treatment because of their sexuality. It is that issue that I sought clarity on.

Baroness Goldie: I will write to the noble Lord in further detail. This will come before the House again in the form of the affirmative statutory instrument, but I am very happy to seek further clarification of the points being raised to see whether I can go further than what I have before me this evening.
The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, also raised the matter of the decision in the cases of Alexanda Kotey and El Shafee Elsheikh. That was not an extradition of individuals. It was a decision by the Home Secretary to provide assistance, including mutual legal assistance. The decisions are taken in accordance with the Government’s overseas security and justice assistance guidance, which requires an assessment of human rights risk, including the death penalty. Overseas security and justice assistance guidance has always permitted the Government not to require assurances in mutual legal assurance requests where there are strong reasons not to do so. I reiterate that the UK remains opposed to the death penalty in all circumstances as a matter of principle.
I think that the noble Baroness, Lady Northover, raised the particular matter of Al Rajaan. I cannot comment on individual cases, I am afraid; that is not the policy of the Government. On the serious issue of the 2017 executions, I repeat the Government’s position on the death penalty: we believe that the death penalty undermines human dignity, there is no conclusive evidence of its deterrent value, and any miscarriage of justice leading to its imposition is clearly irreparable. We raised our concerns with the Government of Kuwait at the time and expressed our disquiet that this should have taken place. Again, regarding potential extraditions, we do not comment on individual cases.
The noble Baroness, Lady Northover, raised the matter of other Gulf states. As noble Lords have pointed out, extradition is clearly possible on a case-by-case basis with all countries, regardless of treaties. The Government discuss mutual legal assistance and extradition with partners in the course of bilateral relations. The extradition treaty was negotiated in its own right without linkage to other policy areas. There is a word here that I cannot make out because the writing in the Box is, I am afraid, not of the clarity that I was taught to observe in primary 1 in my Scottish school. I beg the Box’s pardon. It was laid in Parliament as part of a judicial co-operation package alongside a mutual legal assistance treaty. I hope that that reassures the noble Baroness.
In conclusion, we are committed to the global campaign to abolish the death penalty and continue to maintain this position in discussions with the Government of Kuwait. This forms part of the advice and support,  which I mentioned earlier, that we provide as Kuwait continues to develop its democracy, governance and human rights frameworks. We share with Kuwait a commitment to pursuing justice internationally.

Baroness Northover: Perhaps when the Minister writes to the noble Lord, Lord Collins, she might also address some of my other questions with a bit more precision—perhaps she will be able to read the writing of the people in the Box. I would be grateful if she did that.

Baroness Goldie: Yes, of course. I will be very happy to do that. As your Lordships are aware, I do look at the Official Report and try to address any points I may have overlooked in the debate. I certainly undertake to do that.

Viscount Waverley: In the spirit of writing, perhaps the Minister might wish to reflect on this. Given that she has suggested that this is going to come before the House again, I have been reflecting on it during the debate but I have not fully worked out my thinking. Is there any question in relation to the European arrest warrant? Some odd cases have come through the system where the system has been somewhat abused, if I may say, by certain states. Is there any possibility that European arrest warrant issues will come into play and be relevant to this? People are shaking their heads but perhaps the Minister might wish to respond.

Baroness Goldie: It is a rare pleasure to receive comfort from the Liberal Democrat Benches. I understand from the noble Lord, Lord Paddick, that this does not appear to be germane to the issue under discussion—but I hear what the noble Viscount says.

Kuwait is not in the EU.

Baroness Goldie: Yes, I think the noble Viscount acknowledges that.

Viscount Waverley: It was a question of whether any other state within the European Union could come into play and make an issue in relation to the European arrest warrant that might affect the process.

Baroness Goldie: I can see a whole debate being possible on this issue alone. I hear what the noble Viscount is saying and we will certainly bear that in mind when we come to a later state of the procedure.
I am sure your Lordships will have realised that the whole purpose of this is to ensure that criminals are brought to trial. But it also means, as noble Lords have rightly pointed out, ensuring that our judicial system maintains its full respect for human rights and protection of those procedural safeguards necessary to ensure the fairness of our system. Our extradition framework, including this treaty, achieves a balance of  these fundamental principles, and we look forward to the success of our future co-operation with Kuwait on this crucial subject.
In conclusion, I thank the noble Lord, Lord Collins, for introducing this very illuminating debate, which was a helpful prelude to the debate that will take place when the affirmative instrument comes to the Chamber. It has been a useful opportunity to listen to the exchange of views and I thank noble Lords for their contributions.

Lord Collins of Highbury: I thank the Minister for her response. I have attended one other debate on the treaty. The noble Baroness who moved that Motion exercised her right of reply and, as there is no speakers list, I will do the same.
I just want to reassure the Minister that I do not see this treaty as something bad or regrettable. It is an opportunity. As the Minister says, individual cases can be considered anyway by the courts, but in negotiating and agreeing this treaty, the opportunity was there, as she rightly said, to raise issues about due process and human rights and our concerns over the use of the death penalty. I am somewhat reassured by her comments in this regard.
The Minister said that the purpose of the treaty is that no one should be able to avoid justice—absolutely right. We certainly need to ensure that globally people cannot act with impunity. She knows that I have raised this point on many occasions. No one should avoid justice, and justice must be served and be seen to be served. That is why it is really important for the principles we have raised in the debate to be heard. I am grateful to the noble Baroness, Lady Northover, for her contribution. It is absolutely right that we see these things in context and see them as an opportunity to bring change. The fact that there are still countries in this world where being gay is subject to execution is absolutely disgusting and we need to challenge that.
Motion agreed.

Data Retention and Acquisition Regulations 2018
 - Motion to Approve

Moved by Baroness Manzoor
That the draft Regulations laid before the House on 28 June be approved. Considered in Grand Committee on 24 October.

Baroness Manzoor: My Lords, the other place approved these draft regulations on 15 October and they were considered in great detail in Grand Committee on 24 October. That was followed by a letter on 25 October to all noble Lords who took part in the debate. Of course, a copy of that letter was also placed in the Library.
The regulations bring into force the draft communications data code of practice and amend the Investigatory Powers Act—IPA—to comply with a European Court of Justice ruling. The ruling requires  that there must be independent authorisation for requests to access communications data and, in relation to crime, where the intrusion into private lives would be serious, the offence justifying that intrusion must also be serious. The High Court declared that the Act must be amended by 1 November, which is when these regulations are due to come into force. Therefore, it is important that they are approved today.
I will explain what these changes will mean in practice. To clarify, we are talking about communications data—information such as the name of someone subscribing to a mobile phone contract, the time a call was made or the number that was dialled—but not the content of any calls or messages. At the moment, a police officer investigating any crime can request any type of communications data to support their investigation if it is necessary and proportionate to do so. A request is sent to a designated senior officer who, having consulted a specialist in the use of communications data, decides whether or not to authorise the request.
The regulations introduce additional safeguards  to the process. The police officer will no longer be  able to request any type of communications data in the investigation of all crimes. Instead, the officer will  be able to access only the more intrusive types of communications data—such as where the person was when making a call—in the investigation of serious crimes. Instead of the request being authorised internally, it will now be sent externally to an independent organisation overseen by a Court of Appeal judge. The staff of this independent organisation—the Office for Communications Data Authorisations, or OCDA—will assess the request and, weighing up all the factors relating to necessity, proportionality and seriousness, decide whether or not to authorise it. Only once this independent authorisation has taken place can the officer acquire the data.
There will be cases—such as a missing child, a terrorist attack or another threat to life—where communications data must be accessed more urgently than the new regime will allow. The regulations and code of practice, therefore, include provisions for such circumstances, allowing internal authorisation by a designated senior officer, but make it clear that such authorisations will expire after only three days— not 30 as with ordinary authorisations—and all urgent requests will be reviewed by the Investigatory Powers Commissioner’s office; that is, the OCDA. Your Lordships will see that these regulations are about strengthening safeguards, limiting the availability of communications data to public authorities and ensuring that when it is made available, that happens only after proper independent scrutiny.
When we debated the regulations in Grand Committee last week, the noble Lord, Lord Paddick, raised concerns that the definition of serious crime in the regulations does not abide by the ruling of the European Court of Justice that I have already mentioned. I strongly disagree. All offences that meet the serious crime definition, and pass the tests of necessity, proportionality and seriousness set out in the code of practice, will in fact be serious and warrant the use of communications data in their investigation.
A higher threshold would not allow public authorities to investigate such offences as harassment, stalking, sexual communication with a child, sending grossly offensive messages and contempt of court among others. The Government believe that these are serious and that communications data should be available in their investigation. They are certainly not viewed as trivial by the victims.
The European Court of Justice itself, in its recent ruling on a Spanish case, Ministerio Fiscal, made it clear that a higher level of intrusion into private lives in accessing different types of data must correlate with the seriousness of the offence being investigated. The more intrusive the data request, the more serious the offence must be. Legislation alone cannot give effect to this, and I ask noble Lords to see these measures as a package, with independent authorisation, a legislative threshold that sets clear limits, and the code of practice, which involves considerations of necessity, proportionality and seriousness. As a result, less intrusive data types will still be available when investigating all crime types, but the more intrusive communications data, such as location data, will be accessed only in the investigation of serious crime. Being able to intercept—bug—phones will continue to be available only for the investigation of offences meeting the higher seriousness threshold already in the Investigatory Powers Act.
We consider the regulations to be very much in the spirit of the European Court of Justice ruling. We already have strong safeguards and oversight in relation to our investigatory powers. If an individual believes that their communications data have been accessed unlawfully, they can make a complaint to the Investigatory Powers Tribunal, which is independent of government and consists of senior members of the legal profession. The regime as a whole is overseen by the Investigatory Powers Commissioner, a Court of Appeal judge independent of government. Moreover, the Act as a whole must be reviewed after five years, allowing us to consider whether any changes must be made.
The Government have carefully considered the European court’s decisions in this area and have proposed amendments in good faith, ensuring that this important investigative tool is available to the police for crimes whose impact on the victim is considerable. The regulations are about increasing, not reducing, safeguards. If they are not passed into law by 1 November—Thursday—the new additional safeguards I have talked about will not come into force. I beg to move.

Amendment to the Motion

Moved by Lord Paddick
At end insert “but that this House regrets that the draft Regulations fail to comply with the spirit of the ruling by the Court of Justice of the European Union by failing to restrict the use of communications data to serious offences.”

Lord Paddick: My Lords, I first remind the House that I was a police officer for over 30 years and that— contrary to popular belief—my certificate of service says that my conduct was exemplary. I acknowledge the importance of communications data in the investigation  of serious crime, as the Minister has set out. I also welcome the independent authorisation provisions contained in these regulations, as far as they go.
Secondly, may I give the House some background on the history of the passage of these regulations through this House? At a meeting with the Minister of State for Security and Economic Crime, the Minister of State for Countering Extremism and officials almost three weeks ago, I asked for an explanation of the definition of serious crime in these regulations, which is significantly different from the definition in the Act under which the regulations are made. The Minister for Security was unable to offer an explanation, but undertook to find out and get back to me.
Having heard nothing by the day before the regulations were to be debated in Grand Committee, I alerted the Government to the fact that, in the absence of any explanation, I would seek to oppose the regulations when they reached the Floor of the House. At 8 pm the night before Grand Committee, the Minister of State for Countering Extremism called me to find out what my objections were. I repeated my main concern, as clearly expressed in the meeting with Ministers and officials on 10 October, and she undertook to provide me with a copy of the relevant part of the Minister’s opening speech in Grand Committee. This was received at 10 am on the day of the Grand Committee debate.
Turning to the regulations, in the Investigatory Powers Act 2016—the Act of Parliament under which these regulations are made—serious crime is defined as offences for which a person over 18 with no previous convictions can reasonably be expected receive a custodial sentence of three years. In other legislation currently before the House, the Counter-Terrorism and Border Security Bill, the definition of serious crime is the same. An offence for which the expected custodial sentence is three years’ imprisonment without any previous convictions is not a maximum sentence of three years. Take shoplifting, for example. The maximum sentence for theft is 10 years in prison, but someone stealing a can of beans from Tesco could not be expected to be sent to prison for three years.
The regulations not only lower the bar to a minimum of 12 months’ imprisonment—down from three years—but, by defining serious crime as an offence for which someone is capable of being sentenced to 12 months, mean a maximum sentence of 12 months or more, a much lower threshold than the definition in the Act. Furthermore, it disregards any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions, as opposed to the Act, which has regard to such restrictions.
The Minister in Grand Committee talked about preventing,
“data being acquired in the investigation of trivial offences”.—[Official Report, 24/10/18; col. GC 42.]
The CJEU judgment talks about,
“the objective of fighting serious crime”,
not the prohibition on using communications data  to investigate trivial offences. The CJEU allows  member states to define a serious offence as entailing  three years’ imprisonment, or a maximum sentence of  12 months.
However, the regulations go even further. They include any offence committed by a body corporate and any offence that involves, as an integral part of the offence, the sending of a communication or a breach of privacy. “Any offence” clearly does not differentiate between a serious offence and an offence that is not serious.
As has been said, since Grand Committee the Minister has written to noble Lords who took part in that debate. She reiterates that communications data can be acquired only when the offence being investigated is a serious crime. She refers to the European Court of Justice’s ruling in the Ministerio Fiscal case, which the Minister cited earlier. I quote from that ruling:
“The court concluded that the offence must be serious to justify a serious level of intrusion involved in accessing communications data (i.e. where the data would allow precise conclusions to be drawn concerning the private lives of the persons concerned)”.
The details of every phone call made and received on someone’s mobile phone, the geographic location of that phone on any particular day or time and the websites that a person has accessed either on their phone or computer in the past 12 months are all communications data, and accessing them amounts to a serious level of intrusion.
The letter tries to justify offences that involve as an integral part the sending of a communication or a breach of a person’s privacy, and it goes on to say that “this carve-out”—whatever that means—
“seeks to capture offences such as online stalking or harassment which law enforcement advise have the potential to escalate to more serious offences such as assault, and this has been shown by experience to often be the case. Such offences can be incredibly distressing and alarming to the victim”.
Let me unpack that a bit. First,
“offences ... which have the potential to escalate to more serious offences”,
clearly implies that initially they are not serious offences. Secondly, these offences,
“can be incredibly distressing and alarming to the victim”.
As soon as such offences reach a level of involving fear of violence or serious alarm or distress, they amount to an offence under Section 4A of the Protection from Harassment Act 1997, which attracts a maximum prison sentence of 10 years. That is clearly within the proposed 12-month maximum sentence limit in these regulations, and arguably within the three-year anticipated custodial sentence in the existing definition of “serious offence” in the Investigatory Powers Act. The CJEU explicitly states that the use of communications data must be restricted to the investigation of serious offences, yet these regulations define any crime as serious if committed by a body corporate or if it involves the sending of a communication or a breach of privacy, when by any reasonable definition some of these offences will not be serious.
Two questions therefore remain: why have the Government tried to twist the definition of “serious offence” to include offences that are not serious, and how do they expect to get away with it, bearing in mind that these regulations are a response to a CJEU ruling?
In Grand Committee the Minister explained:
“We have worked closely with the operational community to consider the importance of obtaining communications data against a range of offences, with a particular focus on cases where it was anticipated that communications data will be an important—or indeed the only—investigative tool”.—[Official Report, 24/10/18; col. GC 42.]
I understand the difficulty of investigating some low-level offences if the police cannot access communications data, but the CJEU has ruled on where the line needs to be drawn between preventing unreasonable intrusion into citizens’ privacy and law enforcement, and it drew that line at serious crime. The Government cannot redefine “serious” as any offence involving the sending of a communication or a breach of privacy to get around the bar that the CJEU has set, just because the police say it is an important investigatory tool.
The Minister tried to reassure the Committee by saying that in every case the tests of necessity and proportionality would have to be passed. Indeed, the use of communications data in any case where it was not necessary or proportionate would in itself be a breach of the Human Rights Act. However, the CJEU has said those tests are not sufficient. In addition to being necessary and proportionate, the use of communications data must be used only,
“with the objective of fighting serious crime”.
So how do the Government expect to get away with this clear flouting of the spirit of the CJEU judgment? Presumably they hope that by the time these regulations are challenged in the courts, we will have left the EU and the jurisdiction of the CJEU. This case shows the danger that our civil liberties are in if we leave the EU.
I will spare the House the issues around corporate offences; the way in which these regulations could jeopardise our data protection adequacy status; whether self-authorisation in urgent cases complies with the CJEU judgment requiring independent authorisation; whether there should be a requirement that any retained communications data should be kept within the EU; and whether the regulations should include a requirement to notify the person that their communications data has been accessed or used, as required by EU law—despite my having received no meaningful response from the Government on these issues. I look forward to the Minister’s response. I beg to move.

Baroness Hamwee: My Lords, when Alice was through the looking-glass and having a conversation with Humpty Dumpty, she remarked that he was “exactly like an egg”. He said he found this “very provoking” and Alice explained that he looked like an egg, not that he was one. Their discussion on semantics included the following exchange:
“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things’”.
We have had what we regard as a novel and inappropriate definition of “serious”. There is a current movement, which I welcome, towards language in legislation being as close as possible to normal-speak, giving words their natural meaning. Sometimes, of course, terms need definition, as I accept “serious” does in this context. However, an offence that could give rise to a 12-month sentence is not what most  people would regard as serious in comparative terms—I put it that way because I will not be the only person in the Chamber tonight who thinks all crime is serious—and this is what the European court pulled us up on.
I think people will be even less inclined to accept the definition in the case of someone not previously convicted of anything or—it does not say so but presumably this is the case—convicted and given a suspended sentence. Stalking and harassment have been prayed in aid. I for one will not be characterised as not regarding these as serious, but I ask what other areas were, to quote the Government,
“highlighted by law enforcement agencies”.—[Official Report, 24/10/18; col. GC 42.]
Maybe those are the ones that we have already heard about; I do not know. I appreciate that these behaviours often escalate but they are not the only behaviours or offences that can do so. If there is an issue of legislation regarding an offence and the sentence that it may attract, we should address it head-on. The Minister referred in the previous debate to the right of citizens to be protected from crime and terrorism. I have not read through all the terrorism legislation but she may be able to help me: are there any terrorism offences where the sentence is as low as a year?
She said that the regulations will prevent data being acquired in the investigation of trivial offences, and she mentioned that again today. I think this confuses categories of crime, which are what underlie possible sentences, and the particular infringement, which may be anywhere on a spectrum and the court will give its view in passing sentence as to where on that spectrum the test should be. I accept that there are tests of necessity and proportionality and that these are essential reference points for lawmakers and the commissioner, but it is harder for individuals who consider their privacy to have been invaded to look to these in an effective fashion.
My noble friend said that he would not mention corporate bodies and then rather effectively did so. I do not think the inclusion of these has been fully justified. There has been no attempt to distinguish between levels of seriousness in their case. I thought it was ironic that a crime that will be subject to—or qualifies for, if you like—the regulations may be an offence involving a breach of a person’s privacy.
I support my noble friend whose amendment to the Motion—although he opposes the regulations—is, in fact, to regret them, not to oppose them, and not to seek to delay them beyond 1 November.

Lord Rosser: My Lords, the debate on these regulations took place last Wednesday in the Moses Room, when concerns were expressed about the definition of serious crime in respect of communications data acquisition and retention as being for offences carrying a maximum of 12 months’ imprisonment. The definition also covers any crime by a body corporate or any offence that involves as a key part of it,
“the sending of a communication or a breach of a person’s privacy”.
Since then the noble Lord, Lord Paddick, has put down the amendment to the Government’s approval Motion, which we are now considering.
The reason for the speed in considering the matter further so soon after last Wednesday’s debate is that the Government seek to have the draft regulations approved by this Thursday. If they are not, we will be in breach of a court order following a ruling of the European Court that the relevant parts of the Investigatory Powers Act 2016 are incompatible with European law. The draft regulations have already been discussed in the Commons, where we the Opposition said that we did not oppose the changes. That remains our position and for that reason we will not be supporting the noble Lord’s regret amendment to the Government’s approval Motion if he decides to test the opinion of the House.
Since last Wednesday the Minister, as promised, has written to noble Lords who participated in the debate, in the light of the concerns expressed, setting out the Government’s position on their proposed definition of serious crime in the context of retaining and acquiring communications data. They were valid concerns, which the noble Lord, Lord Paddick, has just reiterated in very clear and emphatic terms. In a nutshell, the Government’s argument, both tonight and in the letter of 25 October, is that the draft regulations remove a power from the police to use data to investigate non-serious crimes and provide additional safeguards and restrictions on the retention and acquisition of communications data in respect of the Government’s definition of serious crime. The changes provided for in the draft regulations were prompted by the court judgment on the incompati- bility with European law of the relevant parts of the Investigatory Powers Act 2016. The Government believe that what they have proposed in the draft regulations meets the terms of that court judgment.
The Government’s second argument is that if they used the definition of serious crime that exists in Section 263 of the Investigatory Powers Act in relation to interception powers in respect also of retaining and acquiring communications data which the Government regard as less intrusive, it would mean that the ability to investigate some crimes considered to be serious would be compromised. The Government also referred to the code of practice and the considerations that have to be taken into account when assessing seriousness, the independent authorisation of communications data requests by the Office for Communications Data Authorisations and the oversight of public authorities and the OCDA by the Investigatory Powers Commissioner.
In theory, these provisions ought to be enough to prevent the definition of serious crime from being abused through ending up with communications data authorisation in respect of crimes that could not be regarded as serious in their nature by any stretch of the imagination. However, there have been too many examples of powers which have been provided by statute in good faith to address genuine concerns in specific areas which have then been abused by being applied or used by those given the authority to deploy them in ways that were never intended or envisaged. Frankly, no one can give a cast-iron guarantee that this could not happen in relation to the use of the provisions in these draft regulations, which were designed to address a court judgement and which may or may not stand up to further judicial scrutiny.
The Minster says in her letter:
“I recognise that some noble Lords may consider that our amendments do not go far enough to limit the retention and acquisition of communications data to serious crime. That question is subject to ongoing legal proceedings”.
The Minister went on to say that the Government would be strongly defending their approach in the courts, but she added:
“Should the courts not agree with our position we would of course move to rectify the regime”.
We understand the concerns being voiced by the noble Lord, Lord Paddick, but likewise—as I am sure the noble Lord does, too—we understand the reasons for these draft regulations and the desire to have provisions that will assist in bringing to justice those who have committed serious, unacceptable acts. The issue is whether the regulations meet the terms of the court judgment—a matter that will presumably be determined in the courts—and whether the authorisation and oversight arrangements and procedures, if they survive legal proceedings intact, will prove strong enough to prevent the powers, the purpose of which we understand, being misused. The Government maintain they will be strong enough, but only time and experience will show. The Government now have a responsibility to make sure that their assurances over how the regulations in reality will be applied and used are adhered to and delivered in full. I am sure that plenty of people will be watching to see whether that happens. As I said at the beginning, we did not oppose the changes provided for in these regulations in the Commons, and that remains our position.

Baroness Manzoor: My Lords, I am glad that we have been able to debate these regulations so thoroughly and consider carefully the proposed amendments to the Investigatory Powers Act. I thank the noble Lord, Lord Rosser, for his very balanced approach to this important issue, and the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for their considered view on the issue of what constitutes serious crime. If I may refer them back to my letter, the position that I outlined there remains the Government’s position.
I will briefly say a few things, but I am conscious that almost everything that has been said tonight was said in Grand Committee—I can see the noble Lord, Lord Paddick, nodding—and I have followed it up in writing to all noble Lords who took part in that debate. I again apologise for any confusion that took place regarding the earlier part of the issue that the noble Lord, Lord Paddick, raised, in relation to the meetings with the Ministers of State. I was not party to those discussions, so I apologise that I am not in a position to comment, but I hope that my letter went some way to addressing the issues that were raised with me in Grand Committee.
I will say a few things again for clarity. These regulations bring in additional safeguards. They ensure that the more intrusive requests for communications data will be accessed only in the investigation of serious crime and that the vast majority of requests by public authorities to access all communications data—approximately 200,000 requests are made per year—must be authorised by an independent organisation overseen  by a Court of Appeal judge. There are very clear safeguards in place. We are taking powers away from our law enforcement agencies in the interests of privacy.
We are, of course, mindful of our duties to protect the public and properly to investigate crimes that they suffer. A balance must be struck and these regulations strike that balance correctly. As I have said, noble Lords may have differing opinions on whether our definition of serious crime in this context is appropriate. Let me be clear. I do not want our police to be unable to effectively investigate an individual sending grossly offensive messages to someone, causing huge distress to the victim who certainly considers the offence to be serious. I do not want to damage the effectiveness of our judiciary by limiting the ability of the police to investigate contempt of court. These are serious matters.
I refer the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, to page 2 of my letter. It is not just the sentence that the person who commits  the crime receives. That is important in terms of the 12 months, but it is not the only issue. As the code of practice sets out clearly in paragraph 3.33, a range of factors should be considered, including but not limited to the circumstances of the case, the offender, the impact on the victim, the harm suffered and the motive for the crime. I hope that that goes some way to addressing the concerns that noble Lords raised.
We have a comprehensive code of practice which provides extensive guidance on what considerations must be taken into account by individuals applying for and authorising requests for communications. As I have said, each and every request must be assessed in relation to necessity, proportionality and seriousness. We are strengthening the safeguards and oversight of a regime already world-leading in these aspects, and we are creating a regime that is compliant with EU law.
I am grateful to Members of the House for their time in ensuring that this has been such a valuable and high-quality debate. We take these issues very seriously. I would now like the regulations to be approved and I commend them to the House.

Lord Paddick: My Lords, I am grateful to the noble Baroness. It is not primarily about the definition of serious crime being an offence punishable by 12 months’ imprisonment or more. It is about the fact that it goes beyond that to include all offences, whether or not they are capable of a 12-month sentence, that have communication as an integral part, all corporate offences, whether or not somebody can be given a 12-month sentence, and all offences involving a breach of privacy. Clearly that is going beyond the definition of serious crime: it includes lots of offences that are not serious.
I am not reckless enough to jeopardise these regulations by asking noble Lords to vote against approving them, but I hope that noble Lords will agree that the Government’s attempts to get round the CJEU judgment is to be regretted, and I wish to test the opinion of the House on my amendment to the Motion.
Ayes 64, Noes 158.

Lord Paddick’s amendment to the Motion disagreed.
Motion agreed.

Northern Ireland (Executive Formation and Exercise of Functions) Bill
 - Committee

Clause 1: Extension of period for Executive formation
  

Amendment 1 not moved.
Clause 1 agreed.

Amendment 2

Moved by Lord Adonis
2: After Clause 1, insert the following new Clause—“Executive formation: appointment of a mediator(1) During the period while there is no Executive, the Secretary of State may specify in regulations the appointment of a mediator to facilitate formation of an Executive.(2) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before both Houses of Parliament  by 1 December 2018 and approved by a resolution of both Houses within the period of 10 sitting days beginning with the day on which the instrument is laid.(3) For the purposes of this section, a “sitting day” means a day on which both the House of Commons and the House of Lords are sitting.”

Lord Adonis: My Lords, I spoke to this amendment at Second Reading and I will not say anything further, as I want to give the Minister an opportunity to say more about the progress which he and the Secretary of State are making with the parties in Northern Ireland on identifying and appointing a mediator and what the timescale for that might be. This is clearly of huge importance to our debate and to progress towards establishing a new Executive in Northern Ireland. I beg to move.

Lord Duncan of Springbank: My Lords, thank you for bringing this matter before the Committee. I will make some general points and then some specific ones. The amendment would place the question of a facilitator or mediator in the Bill. We can do that without it going on the face of the Bill. As I indicated earlier today, we now intend to move from the statement which I gave the previous time I addressed your Lordships—that this is part of the mix—to stating that we are now actively consulting with the parties in order to move this matter forward. All elements of the timescale are not yet fixed but I can say that this will be moving forward within the realisable timetable that we have set for the overall movement of the parties gathering. In order for this to be meaningful, such an individual would have to be in play from the earliest stages, in order to move the most intensive form of dialogue forward. We hope and intend that such an individual would be able to act in a much more expansive role than just as a chair. I would rather use the word “Sherpa” in its European context; someone who can be part of the play and engage directly with each participant both behind and before the scenes.
We hope to move this forward with the consent of all the parties involved to make sure that it is a meaningful contribution. I cannot comment further on the individuals who might be in scope for this role, but others have already sent information through to the department, and we are in the process of sifting and examining it in some detail.

Lord Empey: My Lords, we have heard the suggestion of the noble Lord, Lord Adonis, that we have a mediator, but we are not comparing like with like. Going back to the time of George Mitchell, we have to remember that everything—the whole constitutional process, from scratch—was on the table. My fear is that if you appoint a mediator, they are not going to be able to confine their activities to the narrow issues that brought the Executive down. I believe Sinn Féin would want to completely open up the whole process, putting on the table the constitution, the principle of consent—all those things. I can see where people are coming from, but it seems to me that  it is not beyond the ability of the parties to find a mechanism within themselves whereby talks could be held. To get a mediator to come in to deal with the Irish language Act and the RHI—the two things that brought the Executive down—does not seem particularly realistic.
The agenda would grow and grow, and the process could go on for years. Everything will end up on the table, including the constitution and the principle of consent. I do think we have to try to keep as open a mind as possible, but there may be a difference between a mediator and a facilitator, or a question as to whether the parties can find a mechanism among themselves; but bear in mind where this could go. If some people want to open up a process, there is no better place for Sinn Féin to be than in a process. They are serial negotiators; they want to continue to negotiate, which avoids having to take any tough decisions, particularly decisions in government. We have been warned by others that there are many who would take the view that Sinn Féin will do nothing until the Irish election is over. They do not want to have to take any tough decisions in government, which they would have to do because of the arithmetic, if nothing else.
Bear that in mind when considering the options before us. I would caution that that needs to be taken into account.

Lord Adonis: My Lords, the Committee is listening with great attention to the noble Lord. Would he care to elaborate on the distinction between a mediator and a facilitator?

Lord Empey: I am not personally advocating either, but a mediator is somebody who is negotiating between the parties. A facilitator may be somebody who simply organises the meetings, the paperwork, the breakout sessions and so on. A mediator is playing a Mitchellesque role in meeting the parties, negotiating, putting papers to them and so on. I see it as a step down, if you like, in those terms. I am not personally convinced. If people are not mature enough at this stage, after all these years, to arrange meetings among themselves—and we did have one, admittedly, that was an initiative by one party. I do not believe that we are so far down the road that we could not arrange meetings between ourselves. If the will to talk is there, surely it is not beyond the bounds of possibility that the parties can arrange that among themselves. We have an Assembly Speaker and we have Deputy Speakers. They could chair the meetings. All parties are represented, more or less. There are ways in which it could be done, but believe me, once you get into a process with a mediator, it could go on for years.

Lord Adonis: My Lords, I listened with great attention to the noble Lord, but I listened with equal attention to his speech at Second Reading in which he said that no progress was being made whatsoever in establishing an Executive, and that it was about time that some was made. If it has not been done by the process he has just suggested—the parties coming together—it is hard to see how some external stimulus could lead to a less advantageous situation than the current one.

Lord Empey: I take the noble Lord’s point, which is pertinent. However, do not forget that if we keep to this three-stranded model, we have a Secretary of State and, where appropriate, an Irish Foreign Minister, and in the proper format there is no reason why they cannot be engaged. I am saying that maybe it would be an incentive if the Secretary of State made it clear that a process was starting and that the parties understood that if they were not prepared to participate in that, perhaps she and others would start to take decisions. I am not trying to be obstructive or rule anything out.  I am simply saying, be careful. It sounds like a good idea, but bear in mind that people who are serial negotiators—they have been doing this for 25 or 30 years —will put things on the table and open the whole thing up. My only worry about this is that it just postpones the decisions even further, although I understand fully the noble Lord’s good intentions.

Lord Murphy of Torfaen: I will intervene for a few seconds. The issue is that because the “talks” and “negotiations” have been notoriously unsuccessful over the last couple of years, there has to be some form of structure—although I agree with the noble Lord, Lord Empey, that it has to be on a very restricted number of issues, otherwise you go back to a Good Friday agreement mark 2, and we do not want that. You want to work within the agreement but have some sort of structure. If there is a person who could organise that structure and be acceptable to all the parties, I see nothing wrong with that. I understand that if you expand it beyond the current issues, that could be difficult. However, there are a number of issues beyond those the noble Lord, Lord Empey, mentioned—for example, the Irish language and equal marriage. All those things can be on the table, but it is about getting some form of structure which simply does not exist at the moment. Anything that could help that would be useful.

Lord Adonis: My Lords, I invited the Minister to set out the Government’s thinking, which he did, clearly, and I took him to say that they are minded to move towards some form of external mediation at some early date. I take that as a significant statement, and on that basis, I am content to withdraw the amendment.
Amendment 2 withdrawn.
Clause 2 agreed.

  
Clause 3: Exercise of departmental functions during period for Executive formation

Amendment 3

Moved by Lord Hain
3: Clause 3, page 3, line 7, at end insert—“( ) The guidance must direct senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland.”

Lord Hain: My Lords, Amendment 3 is in my name and that of the noble Lords, Lord Bruce and Lord Cormack, and, I think, the noble Lord, Lord Bew, indicating Cross-Bench support. I will also speak to Amendment 13A in my name and that of the noble Lord, Lord Bruce.
When I spoke in March, I raised the plight of the 500 or so people severely injured because of the Troubles in Northern Ireland. The overwhelming majority were injured through no fault of their own, and face growing into old age desperately unsure about what the future holds for them. Because of their injuries, most of them were unable to build the kind of occupational pensions that they would otherwise have had. Just recently, one of the WAVE Trauma Centre’s injured group, which has been campaigning for a special pension, received a final settlement on her pension contributions in the form of a lump sum. It was taxed at 20%. She received a magnificent £25.39, which, frankly, is an insult to somebody in her situation.
Jennifer had her legs blown off in a no-warning IRA bomb in 1972, when she was 21 years of age. Paul, who was 21 when loyalists shot him six times because their target who lived next door did not turn up, is paralysed from the waist down. He describes the constant pain he lives with as like,
“sitting in a pool of lava”.
Every two days his carers—his wife and his brother—have to use a colonic irrigation system to empty his bowels into a bucket. That is Paul’s reality.
This especially vulnerable group of victims have had to deal with much more than the physical damage inflicted upon them. Peter was 26 when he was shot and paralysed in a case of mistaken identity in 1979. His wife, his childhood sweetheart, was tormented by misplaced guilt because she opened the door and,
“let evil into their home”,
as she described it. Peter had to watch her drink herself to death by the age of 51.
Mary was 17 when she was paralysed in a drive-by sectarian shooting. She was told that a realistic life expectancy was that she would not see her 32nd birthday. More than 40 years on, she is still here. She has had three shoulder replacements because of the strain on her upper body, being confined in a wheelchair. She has had to pay for these privately because if she joined an NHS waiting list she would be immobile.
Those who suffered severe physical injuries during the Troubles in Northern Ireland are, in many ways, the forgotten victims of the conflict. Perhaps there was an assumption that they had been looked after at the material time with generous compensation payments that would see them financially secure for the rest of their lives, but that simply did not happen. Many of the severely injured have lived much longer than the life expectancy assumptions made at the time. Most of the severely injured sustained their injuries during the 1970s and 1980s. Many predated disability discrimination legislation so, even if they could have found work, the chances that the workplace would have been adapted to their needs—for example, for those confined to wheelchairs—were more than remote. All they want is a degree of modest financial security so that they—and in many cases their carers—can live the rest of their lives with as much independence and dignity as possible.
To that end, I urge the Government to act swiftly to address this cruel legacy of Northern Ireland’s violent past and provide support for the severely injured through the provision of a special pension. Getting the Government both to recognise and to act upon that obligation is the purpose of these two amendments. In terms of the level of pension, the then Victims Commissioner for Northern Ireland suggested a figure of £150 per week or around the current state pension provision. Given the age profile, a lump sum for those aged over 75 would probably be more appropriate.
In any event the cost, including the administration of the pension, either by the Northern Ireland Civil Service or through the DWP, would not be prohibitive. This total cost has been authoritatively estimated to be between £3 million and £5 million annually. These figures clearly indicate that the pension commitment will diminish through the passage of time, even allowing for some provision for a proportion of the pension to go to the carer when the injured person dies. But for the pension to make a real difference to those who need it, it cannot be counted as income for the purposes of qualifying for existing benefits. That is a very important point. It must be “as well as” and not “instead of”, and be in addition to any other pensions and/or benefits that the injured person either is, or will be, in receipt of.
There is a subsidiary issue to be dealt with in relation to the relatively very small number of people who were severely injured by their own hand, but it is quite wrong that the vast majority who were injured through no fault of their own should be denied support because of a specific political blockage that could and should be resolved. These were not people in the wrong place at the wrong time. They were at work. They were at home with their family. They were having a coffee in a café. They were walking home after an evening at the cinema. They were in the right place, where they should have expected to be safe and secure.
Now is the time for the Government to act swiftly, with I hope wide parliamentary backing, after years and years of this case having no response. That is why I speak to this amendment, which simply seeks that the guidance referred to in Clause 3(3) must direct or, as Amendment 13A puts it, provide for,
“senior officers of Northern Ireland departments, giving due regard to advice from the Northern Ireland Commission for Victims and Survivors, to prepare a scheme to provide a pension to those who are regarded as seriously-injured arising from an incident associated from the conflict in Northern Ireland”,
and for that to be backdated, as Amendment 13A requires, to 1 January 2018. I say that because, if this takes some time to implement—if it requires legislation, as I understand may be the case—there must be certainty that this will happen and that, however long it takes to process, it will be backdated so that at least these victims can have something to look forward to.
This is an opportunity for the Government to show some real compassion for those who have suffered most. I know from conversations that I have had with the Minister that he is on the side of the angels on this matter. I respect him for that. I think that he is trying  to do his best, and I hope that in his response he can take this matter forward. I do not want to make his life more difficult by anticipating and rebutting the Government’s likely official response, at least so far as it has been stated in the other place and elsewhere.
However, we have been told that this is a devolved matter and that the Government cannot undermine the devolution settlement by interfering or, as I would prefer to describe it, intervening. I will come back to the question of whether the plight of the severely injured is in fact a devolved matter or whether it should properly be treated as a reserved matter for the UK Government, like other legacy issues. However, there are precedents for the Government intervening in devolved areas because it has been the right thing to do. Health is devolved to Northern Ireland. Thanks to the amazing work of Charlotte Caldwell, literally arguing for the life of her son Billy, who suffers from life-threatening epilepsy, the Home Office was forced to move on the use of medical cannabis, which is absolutely essential for his and other sufferers’ treatment. The use of medical cannabis is now permitted in Northern Ireland. Did that interfere with the devolution settlement? Presumably not or it would not have happened.
Recently, the Independent Reporting Commission, set up to bring an end to paramilitary activity and to tackle organised crime in Northern Ireland, reported for the first time. Twenty-five million pounds to back the IRC came from the British Government, not from devolved budgets, to pave the way for those involved in paramilitary activity to make the transition from mafia-style gangsterism to being ordinary law-abiding citizens. Apart from a small but highly dangerous number of dissident republicans, the paramilitary activity that the IRC is focused on is pure gangsterism. Indeed, the highly respected former assistant chief constable of the Police Service of Northern Ireland and now chief executive of Co-operation Ireland, Peter Sheridan, argued that these groups should be called paramilitary no longer, but criminal gangs, and I agree. However, this is not a national security issue. Primarily it is a matter for the criminal justice system in Northern Ireland. It is a devolved matter. Criminal justice is devolved yet the Government intervene—absolutely rightly, in my view—to the tune of £25 million. Did that interfere with the devolution settlement? Presumably not.
Injured victims recognise that the paramilitaries who so grievously damaged them have to leave the stage and they do not begrudge this money being used to help Northern Ireland transition, but they wonder how the Government could find this money so quickly when they are told in effect, “Your case is nothing to do with us. Wait for the local politicians to finally bring themselves to discharge the responsibilities for which they were elected, whenever that is—next year, the following year, maybe whenever, if ever”. The reality is that the Government already intervene in devolved matters when it is the right thing to do in the absence of functioning devolved government and a functioning Assembly, and that is as it should be. Indeed, this Bill is a form of intervention.
The Secretary of State made a welcome move in May when she asked the Victims Commissioner to revisit and update her advice on this claim for a  pension, and I thank the Minister for his role in that. I have absolutely no doubt that the Victims Commissioner will produce advice that is rigorous, objective, costed and workable, and I hope she produces it soon. No one will be plucking figures out of the air. There  will be a template that can and should be speedily implemented.
When the Bill was debated in the other place last week, the Secretary of State said that the Victims Commissioner’s advice would sit on a shelf until devolution was restored. That is, in effect, telling those injured victims that they will not be assisted. Instead, they will be abandoned, as they have been for a very long time. An unarguable case for recognition and reparations has been made for nearly eight years now. For most of that time, there has been devolution in Northern Ireland, and all they have got is tea and sympathy because the question of eligibility in relation to the very small number of those “injured by their own hand” is just too difficult for the local parties to resolve. That is why it should and must be done by this Parliament.
We rightly praise politicians in Northern Ireland who are trying to take it to a better place than it was in when I and other noble Lords, including my noble friend Lord Murphy, were charged with building new political foundations out of the wreckage of a violent past. At the same time, we have to call them out when they dig in behind their entrenched or sectarian positions and refuse to compromise for the greater good of victims, such as those severely injured. So far, the DUP and Sinn Féin remain deadlocked on this issue, and nothing has moved. That is why we must do it for them, so that justice for this most vulnerable and desperate group of citizens can prevail, and when I speak about them I mean the vast majority who were not “injured by their own hand”. The latter can be dealt with separately.
Nevertheless, I firmly believe that the Government’s insistence that this is solely a devolved issue is misplaced and simply wrong. Those campaigning for a pension who were injured through no fault of their own are as much a part of the legacy of Northern Ireland’s violent past as anything else, and the Government are trying to address this. Indeed, it would be hard to find a more physical manifestation of that legacy than Margaret, who has no eyes, pushing the wheelchair of Jennifer, who has no legs. Has the Secretary of State so little compassion for her plight that she will not put the local parties to shame by providing a pension, and quickly? The Government have an overarching responsibility for legacy issues. That is why they are considering responses to their recent consultation paper on legacy issues, for which they have set aside £150 million. It would be absolutely shameful if the people who have suffered so much were told, “We feel sorry for you, but not sorry enough to do anything about it”.
Finally, I wish to say something about the Bill before us that relates directly to the amendment but has wider and deeply worrying implications. I could have made this point at Second Reading, but I make it now. The Government want us to focus on the narrow issue of the supposed clarity given to civil servants in Northern Ireland, in relation to their capacity to maintain  public services and keep the business of government ticking over in the absence of an Executive and Assembly. What is seriously concerning is how long the Government envisage this democratic void persisting before anything happens. They do not envisage any movement before March next year, and then an additional five months is built in. It is shocking that the Government do not seem to realise that hoping something will turn up is nothing approaching a coherent political strategy to restore devolution. Sadly, while the Government procrastinate, the condition of severely injured victims deteriorates daily, and many fear that they will die before their plight is acknowledged and support given. Time is not on their side. The Government must show that they are prepared to act in the name of justice and decency, and I appeal for support for this amendment if the Minister resists it.

Lord Cormack: My Lords, I will be very brief. I was delighted to add my name to Amendment 3, which is also in the names of the noble Lords, Lord Hain and Lord Bruce. I do not need to make the case, because it a powerful case that has been powerfully made by the noble Lord, Lord Hain. All I would say is that during my five years as chairman of the Northern Ireland Affairs Committee in another place I met many people and heard many distressing accounts that underline the points made by the noble Lord, Lord Hain. We are talking about people whose futures were destroyed, whose hopes were blighted and whose lives were changed for ever by an evil act and not by anything that they had done to themselves.
As the noble Lord, Lord Hain, said, there were those who were responsible for their own injuries. They deserve some compassion for their terrible mistakes and evil deeds, but that is not what we are talking about tonight. We are talking about those who were blameless and whose need is great, who are advancing in years as they advance in decrepitude, and who are less and less able to do anything for themselves. The only way to help those people, who are as deserving of help as any category I can think of, is for us to do something along the lines advocated in Amendment 3.
I hope that my noble friend the Minister, for whom I have a genuinely high regard and who is a real master of his brief and really concerned with the subjects for which he is responsible, will be able to say enough to prevent any thought of dividing the House. The House should not be divided on an issue such as this. We should be totally united in our determination to do a little for those who have lost so much. I have great pleasure in supporting this amendment.

Lord Bruce of Bennachie: My Lords, I too support this amendment, which I have signed, and which was powerfully moved by the noble Lord, Lord Hain. All I add is that it encapsulates the dilemma that the Bill represents. These are people who have suffered for decades and who are towards the end of their lives, although they have lived a lot longer in many cases than they were expected to, with psychological and physical difficulties. There is a cross-party and, indeed, administrative and political consensus that they should be compensated, but there is no mechanism for doing  so because that mechanism has effectively foundered or is in deep freeze. In that situation, to say to these people that they will have to wait until such time as an Assembly is re-established would be heartless in the extreme.
There are two issues. First, it should be within the capacity of the Government to make this happen, either in the Bill or by some other mechanism. The cost is relatively low. Secondly, to suggest that it is  not possible to do something as sympathetic and compassionate as this, which has such cross-party support, would be very distressing to people who have been led to believe that their case is understood and that there is a willingness to deliver it, when, because of the incapacity of the political system, they might have to wait too long even to benefit. The amendment is well made and there are one or two others that fall into the same category. If the Minister can provide the assurance, he should really be talking not to the House but to the victims.

Baroness O'Loan: My Lords, I support the noble Lord, Lord Hain, on this issue. We need the issues of the past to be dealt with. This needs to be dealt with by means of a separate ring-fenced budget so that it does not come out of the Northern Ireland budget. Particularly on pensions, I know many of the people to whom the noble Lord referred. I have worked with them and met them, and spoken to and for them. There is an ongoing campaign that is wearing them out. I ask that there be support, as there seems to be right across the House.
I also ask for support for additional resources for trauma services, for the ongoing search for the disappeared, such as Captain Robert Nairac and the 17 year-old Columba McVeigh, and for an independent historical investigations unit that is not constrained to a five-year period.
The suffering of those to whom the noble Lord, Lord Hain, referred has been enormous. It has lasted for so long. The Government could make a difference here and I ask them to do so.

Lord Eames: My Lords, I add my support to that which the noble Lord, Lord Hain, has received already. In my own experience over the years, I have been in these people’s homes; I have been at their bedsides; I have been with their families; I have tried to advise their young people, who were bereft of parental support. Time and time again, the efforts of clergy of all denominations have somehow come to a shuddering stop over this simple question: who is a victim?
Right back in the early stages, when Denis Bradley and I were asked to produce a report on the legacy of the Troubles, we came head-on to this question of definition. In my reading of the words that the noble Lord, Lord Hain, just used in his speech, I have no hesitation in adding my support to his request. These are the real victims of legacy: through no fault of their own, they will carry to their deaths the scars—mental and physical—of the Troubles. I am so glad to support the amendment.

Baroness Altmann: My Lords, I briefly add my support for the amendment moved so passionately by the noble Lord, Lord Hain. From personal experience, I know what it is like to campaign for a pension that one desperately needs. It is soul-destroying. The relief when the pension finally arrives is also life-changing.
The Government already intervene in devolved issues, as the noble Lord, Lord Hain, said, while the functioning Assembly is not operational. The case for recognition and reparations for these severely injured victims seems absolutely clear. I implore my noble friend, who I know is a compassionate man, to urge the department to show the compassion for which so many across the House have expressed the need.

Baroness Smith of Basildon: My Lords, I support my noble friend Lord Hain and the noble Lords, Lord Cormack and Lord Bruce, in their Amendment 13A. I spent two and a half years as Victims Minister in Northern Ireland. As we heard from other noble Lords, there is great understanding in this House of the suffering that many have endured. Indeed, the Eames-Bradley report—written by two great men—really brought home to many what was required for the needs of victims, though it was unpalatable and difficult for some.
The victims whom my noble friend Lord Hain spoke about are ageing—they are getting older. Their conditions are getting worse and their circumstances more difficult. One of the things that struck me as both Victims Minister and Health Minister was how, in so many cases, the help that the health service was able to provide was inadequate to meet the needs of those who required support, particularly in cases of mental health. When you spoke to the group of people we are talking about—I do not know whether other noble Lords felt the same—and heard their stories and about the impact of what had happened on their lives, you would be very conscious that you could turn around and take the story with you, but they were living with what they told you and the consequences would never leave them.
We understand the limitations of the Bill and what can be done within it. We understand the problems caused by there being no Executive or Assembly, but this is an occasion when, I hope, the Government could take some action to right a wrong and address an injustice. They could take a step in the right direction to see what support can be given. I congratulate noble Lords on bringing this forward, and I hope that the Minister—who I know is giving considerable thought to this—can give a positive response this evening.

Lord Duncan of Springbank: I am struck, as I gaze around the Chamber, by how many people are wearing poppies. And I am struck again by the poetry:
“Age shall not weary them, nor the years condemn”.
But of course we are talking about people who will be wearied by the passage of years and who will be condemned to live through that period—victims of a great iniquity done to them. I have spoken of the situation a number of times now with the noble Lord, Lord Hain. I will preface my remarks by saying that it is our hope that we will secure an Executive who can  take this matter forward. Were I to stop with that answer, it would be inadequate, so I will not stop there but carry on.
The important issue here is that we have commissioned from the Victims Commissioner a thorough report into all aspects of this serious issue. We have asked her to expand her remit to look at not just physical but mental anguish and I am able to say today that the Secretary of State will write to the Victims Commissioner, asking her to include a date from which payments shall be made. This is not a future point but rather some point where we can be very clear going forward.
As I said, it is our hope that an Executive will take this matter forward. However, if, despite our best efforts, that Executive have not been restored by the time updated advice on a pension issue has been provided by the Victims Commissioner, the Northern Ireland Office will consider how the matter can be progressed. That is not to put it into the long grass or put it away, but to recognise that it must be progressed.

Baroness O'Loan: Has the Victims Commissioner indicated a date by which she might report?

Lord Duncan of Springbank: The Victims Commissioner has not indicated such a date, but I am led to believe that we should be able to see progress in good time, if I can use that term. It is not an answer that the noble Baroness would want. I would like to give her a date but I cannot bind the Victims Commissioner to a date.

Lord Cormack: Of course my noble friend cannot bind her, but could she not be asked to do it within six months at the most? These people’s lives are coming to an end very frequently and we do need to have a date.

Lord Duncan of Springbank: I am in a slightly invidious position because I cannot give a date—but I know that six months would be very far away and would be unacceptable to us. I cannot say that specifically, if my noble friend will forgive me, but we will make progress as quickly as we can because we recognise that this is not a matter that can be left to languish. The individuals are living through their own fate and we will not allow that to be the case. I hope that noble Lords will accept these words for what they mean and what they can deliver.
My word—I have been given a sheet of paper. We will guarantee within six months. So, yes, we will be able to do it within six months and I hope that that will therefore give some comfort to noble Lords that we take this matter with the utmost seriousness and we will move it forward.

Lord Hain: My Lords, I am grateful for the  support from the noble Lords, Lord Cormack and Lord Bruce, from the noble Baronesses, Lady O’Loan and Lady Altmann, from the noble and right reverend Lord, Lord Eames, with his passion, and from my noble friend Lady Smith, because of course she worked with many victims, both when I was Secretary of State and before and did a fantastic job. She, perhaps more than anybody, knows about the issues at stake here,  from a ministerial point of view at least. I am grateful to the Minister for the discussions we have had and for the efforts he has made both to understand and respond to the issue. He has showed more conviction to do something about this than I have detected from the Government so far. I do not want to put him in an invidious position, and I certainly do not want to injure his future career by praising him, but he has shown real compassion as well as some determination to resolve this.
I think that six months, with due respect, is a long way away, as the Minister said. The Victims Commissioner has had this instruction since May. That is a while ago and I hope that this can be weeks rather than months. Maybe some of his officials listening to this debate might ring the Victims Commissioner and suggest  that she at least read the debate and make her own mind up.
This has to happen—and it has to happen within a specified time. I am not asking the Minister to do that specifically tonight, but I do not want to be in the position of facing some future legislation in six months’ time and then being told, “Well, maybe next year”. I am grateful to the Minister for saying that there will be a date from which it will be applied, even if the actual decision to do something about it comes in the future. I think that that will be a reassurance to the severely injured victims. I look forward to receiving the letter which may give us some clarity. On that basis, I beg leave to withdraw the amendment.
Amendment 3 withdrawn.

Amendment 4

Moved by Lord Bruce of Bennachie
4: Clause 3, page 3, line 7, at end insert—“( ) The guidance shall direct senior officials of Northern Ireland Departments to take all reasonable action to prepare to deliver, within the existing legal framework, a redress scheme for victims of historic institutional child abuse, taking into account the recommendations of the Historical Institutional Abuse Inquiry and the reports of the Panel of Experts on Redress.”

Lord Bruce of Bennachie: My Lords, I think this again indicates the dilemma that we are having, although the framework is possibly slightly clearer and it may therefore be possible to implement it at least as well as the previous amendment, which we hope will be delivered. The reality is that the historical institutional abuse inquiry was the largest inquiry into child abuse ever held in the UK. I think it is fair to say that the backdrop was not just the need to investigate: in reality, movies have been made, novels have been written, many testimonies have been given to the systematic and appalling treatment that people have received, north and south of the border, over decades and in many institutions. It is quite shocking. When we read these things, it makes most people very angry that that kind of abuse could have been perpetrated—sometimes, and too often, in the name of religion. However, the point is that an inquiry happened, it reported and made clear recommendations. It was chaired by retired judge, Sir Anthony Hart, and lasted for four years. It is  more than two years since it reported. It included a public apology, a memorial and a financial redress scheme
There is political agreement—and yet, because we have no Executive and no Assembly, we have no ability to deliver that agreement. We are talking about victims who, as in the case of the previous amendment, have been waiting for up to 40 years for redress and have had to live with consequences of that abuse. We are seeing them, again, approaching the end of their lives without having received anything more, at the moment, than an apology and a memorial. There is a need to address this.
The recommendations of the Hart commission provide a clear template. It looks, on the face of it, as if this could fall within the terms of the Bill. In other words, there is enough detail in those recommendations to enable the civil servants to implement them. Again, without guidance, maybe the civil servants feel that they cannot or should not, or that they need the authority of Ministers from an Executive or the Assembly.
If the Minister agrees with the basic analysis I have presented, is it his interpretation that the Bill could provide the guidance that would enable the recommendations of the Hart commission to be implemented within the terms of the Bill as advice and recommendations that civil servants would actually have the capacity to implement? If that is not possible, the same argument will apply as to the previous amendment—that the UK Government need to do something about it. I beg to move.

Lord Maginnis of Drumglass: My Lords, I support the amendment of the noble Lord, Lord Bruce. It would be absolutely ridiculous if the amendment which has previously been accepted were to supersede this particular case of sexual abuse of young people, which predates to a large extent what has already been dealt with in Amendment 3.

Lord Empey: My Lords, my Amendment 6 is in this group. The argument is the same. This is not the first discussion we have had on the Hart report. It has been raised whenever we have dealt with budgetary matters, and we have had two budgets. To put it in context, there is one complication in that the funds are not exclusively a government responsibility because presumably the people who operated the institutions have insurance. We have seen examples, particularly in the United States and elsewhere, where insurers have had to contribute. I am totally in favour of that but it should not paralyse us and prevent us moving forward.
The other characteristic of this proposal is that there is all-party support in Northern Ireland for  it. There is not a single, solitary MLA in Stormont who is opposed to it, so there is no reason to say that there is a political issue here. There is no political issue with regard to support. There is unanimity—a rare commodity in Northern Ireland. The victims came to the other place to lobby—I met them in the Public Gallery—and spoke to Members of Parliament. This is a very similar demographic to that referred to by the  noble Lord, Lord Hain, including people who were traumatised more than 40 years ago. This is not just a Northern Ireland issue; it applies right across the board, as the noble Lord, Lord Bruce, indicated.
Where do the funds come from? As of yesterday there are unhypothecated Barnett consequentials of £320 million. Where Barnetts are concerned, the money that comes from London does not have to go to particular subjects, such as education or roads; it can go to whichever department the previous Executive directed it to. It would not be difficult to check again whether there is unanimity for this, which I believe there is. I understand the Minister’s dilemma—is this creeping direct rule?—but there is a different dimension here, just as in other amendments that we will come to shortly. There is compassion. There is time. There is the degree of suffering that people endured. Is it right that we add to that when there is no financial, political or any other rational reason for doing so?
I just do not believe that the ordinary person in the street back home, whatever their view of devolution or Stormont, would be that upset if these people who have suffered for so much of their lives receive redress and we deal with this on humanitarian grounds. That is the best approach. There is unanimity of support, there is a humanitarian issue and I believe the resources are available. On those three issues, I hope the Minister will see fit to give us a positive response.

Baroness O'Loan: The people affected by the historical institutional abuse inquiry were also affected by the Troubles. Many of them ended up in residential institutions because of the Troubles. Billy McConville, the son of Jean McConville—who was abducted and murdered by the IRA—died before the payments recommended by Hart were made. I support the proposal and hope that the Government will find some way of dealing with this in the interests of those victims.

Lord Hay of Ballyore: My Lords, I, too, have some sympathy with the amendment moved by the noble Lord, Lord Bruce. As the noble Lord, Lord Empey, said, this issue is supported by all the political parties in Northern Ireland in trying to address this very serious problem.
It is quite some time since the Hart report was delivered to the Government. I know that David Sterling, head of the Civil Service, was working up a Bill to try to resolve the issue, but I am told that he is now saying clearly that it has to be dealt with by a Minister, which slightly worries me. None the less, if there is anything that all the parties can agree on, the Government should grab it, because that does not often happen.
I have raised this subject in the House before, because I believe that the institutions responsible for the abuse should pay up as well. It would be totally wrong if all the money came from the Government. I know that the issue has been raised in the other place as well, and I say to the Government that nothing should stop them trying to address it. Some survivors of the abuse are getting old: some are very elderly, and some have died. Relations have died, too, and those people have not seen the full output of what they deserve. I appeal to the Government and I hope that,  with the support of all the political parties in Northern Ireland, and the support shown throughout this House and in the other House as well, when the issue has been raised, they will find a way of dealing with it. We should make sure that we do not create a major problem for devolution in Northern Ireland when it comes back.

Lord Duncan of Springbank: My Lords, it is not often that we find unanimity in such a fashion, so let us grab it with both hands. I fully recognise the importance that Members accord this issue. It stands alongside the earlier matter raised by the noble Lord, Lord Hain. I hope the House will welcome the fact that the Northern Ireland Civil Service has advised that it is currently preparing draft legislation based on the recommendations of the Hart inquiry, which it will publish very soon. On the basis of that there will be a full public consultation, to ensure that we can move this matter forward, and  it will be our intention to do so within a sensible  time. There is unanimity on this issue and I believe  we can make progress on it. I hope that is enough to give the noble Lord who moved the amendment  some comfort.

Lord Bruce of Bennachie: I am grateful to the Minister for his characteristically sympathetic response, and obviously for the practicality that civil servants are bringing forward legislation. That does, of course, raise the question of how and when such legislation could be implemented, given the present lacuna. So I add the proviso that I hope the Government will ensure that the timetable is not open-ended. This does not have to wait for ever, or for the return of the Assembly.
A point has been raised about the responsibility of those who perpetrated the abuse. Yes, I agree—but I also caution that I would not want that to be used as an excuse to create an argument that would delay things. It seems to me that there is absolute agreement about what should be done and how it should be done. It is good that legislation is happening, but it is slightly concerning that this requires legislation rather than executive action. There seems to be enough in the Hart recommendations to pretty well constitute the basis of legislation, which could be implemented as an executive action. With the proviso that I hope the Government will not allow this simply to languish as one of the issues waiting for the Assembly to return, I am willing to withdraw the amendment.
Amendment 4 withdrawn.

Amendment 5

Moved by Lord Bew
5: Clause 3, page 3, line 7, at end insert—“(4A) The Secretary of State must establish an advisory panel which senior officers of Northern Ireland departments may consult in cases where they are required to exercise a function of the department under subsection (1).(4B) If a senior officer consults the advisory panel under subsection (4A), then the senior officer must have regard to the advice of the advisory panel.”

Lord Bew: My Lords, before I speak to the amendment I should like to say that the noble Lord, Lord Hain, is right in his belief that he has my support on the earlier amendment and I am happy to give it. Amendment 5 is about a less emotive matter, but it still addresses a serious question. Noble Lords will have heard, particularly in the speech by the noble Lord, Lord Empey, but also in an allusion just now by the noble Lord, Lord Hay, about the morale at the top of the Northern Ireland Civil Service. It is in a very bad way. Part of the context has already been described by the noble Lord, Lord Empey: the incredible bullying by spads. Of course you hear about bullying by spads in Whitehall but believe me, as someone who knows both worlds, this is a qualitatively different level of bullying. The consequence has been that the Civil Service has lost some of its élan and, to be blunt, self-confidence.
Related to that is the fact that at the beginning of the Brexit crisis the Irish Government, under Enda Kenny, the then Taoiseach, had allowed practical discussions about the border and other questions to go on with Northern Ireland civil servants, but that was then stopped under a new Irish Taoiseach. In fact, the Northern Ireland Civil Service has not had the sort of practical impact on Brexit discussions—even with our own Government, in a weird kind of knock-on effect—that it might be expected to have. When you read that three or four weeks ago Michel Barnier was asking for figures on the trade flows on the island of Ireland—east-west and north-south—your jaw drops because you know that the senior officials at the Northern Ireland Office all know these things just like that but apparently we have been conducting a negotiation with the rather important issue of exactly what is going on in this trade relationship not even known. Perhaps it  is not that surprising; there are things at stake in this negotiation other than the actual practicalities of the trade relationships from north to south and east to west, but still they seemed to have disappeared from the scene.
I think, by the way, that this issue has constitutional significance. The NICS has a strong sense of the way in which the Good Friday agreement was established, particularly the notion that if you are going to  adhere to the agreement then north-south regulatory arrangements, however they develop, depend on the co-operation and support of the Northern Ireland Assembly. That point is critical: if you are going to defend the Good Friday agreement, you also have to be careful about what is projected in terms of regulatory arrangements north and south, and the Assembly has an effective veto.
We have lost a lot through a lack of morale. It means that when this legislation came down the pipe, officials could be heard rather nervously saying, “I don’t want that authority”, even though, to be absolutely blunt, the Queen’s Government must go on and these decisions are necessary to prevent extreme cases of waste, if nothing else. So it must happen and the Government are right to take the powers. However, in the context in which we are now living, it is right to offer the officials, who strongly suspect that they will be subject to judicial review and all manner of clamour locally about decisions that people do not like, some sort of advisory panel—which might include Assembly Members—as a kind of cushion against some of the  pressures that will come their way. It is hard in the current public climate in Northern Ireland to ask a single Permanent Secretary of a given department to, as it were, take on the burden of these decisions on their own because all hell will break loose, even over decisions that we consider the simplest, and the most obvious and clear-cut. There will calls for judicial review and major public controversies. So there is a case for having some kind of advisory panel so that officials would, in effect, be able to say, “I took the advice of the advisory panel”. That is the case for this amendment, given the current public climate. When the morale of the NICS was somewhat stronger I would not have made it, but let us be clear that everyone knows—the noble Lord, Lord Empey, explained why today—that its morale at the top levels could not now be lower. That is why this is the specific moment at which to advocate this point.
I have one final point. In a slight aside, the Minister talked about the legislation as having been designed to progress public appointments that have lapsed or are not happening. One of those categories is QCs, and I wonder whether the Government have anything to say to clarify their general position on quite rightly wanting to speed up public appointments.
This is essentially a probing amendment and I am strongly in favour of the Bill in general terms. Whatever happens today, though, the Government should be very mindful of the exposed state now of those who head up, as Permanent Secretaries, the individual Northern Irish ministries.

Lord Empey: My Lords, I have Amendment 13 in this group. I am not quite sure that it sits precisely with Amendment 5. To follow up on what the noble Lord, Lord Bew, said, I asked whether senior civil servants were members of the First Division Association, the trade union for people in senior positions in the Civil Service, because these civil servants are being asked to do things that no other civil servants are being asked to do. There is a risk here that is not fully appreciated. We are taking it for granted.
The noble Lord, Lord Trimble, made the point about the law and the department being different. Here, the power is vested in the Secretary of State and back home it is vested in the department—we understand that—and a Minister’s role, when one is in place, is to direct and control the department. What we found when we had a period between devolution before—even though there was direct rule—was that civil servants ended up having to implement policies that they knew those of us who had been devolution Ministers and were again did not approve of. They were put in an embarrassing position when devolution was restored because they suddenly found they were having to work for somebody whom they had previously actively opposed. We have to understand that you cannot take a public institution such as this and simply mould it to whatever circumstances you find on a day-to-day basis. These people have a career. They do not want to get into a firefight with politicians but that is where we are pushing them. We have to be very careful.
My amendment covers audit office reports and, like everything else, these come regularly. Each year the auditor decides an agenda of what issues might come up. These reports are extremely valuable because they look at what is happening to taxpayers’ money. Incidentally, there is another big question. What happens when Sir Patrick Coghlin reports on his inquiry? Where does that go? It certainly will not go into the ether. Who will deal with it? Does the department prepare and publish a response? Will important lessons be learned from these audit office reports? We have to be careful that they do not just disappear because valuable lessons are learned from them here as well as everywhere else. I simply say to the Minister that reports should not just be in the ether, without our knowing what happens to them. It is taxpayers’ money at the end of the day and Parliament has an overall responsibility for that, even though it is devolved. I should like to think that departments will publish a response, even if it is merely to some of the technical matters that may be resolved.
I support the noble Lord, Lord Bew. Practically every week over the last couple of months, senior civil servants have been appearing in that inquiry and getting a hard time—some of them have been there for days—and coming back and revealing what has been going on. I have to say that, even though I knew things were not great, like most other people, I have been shocked by the extent of the abuses that have been allowed to take place and the culture that permitted it to happen. Huge issues need to be discussed here. In this case, I should like to think that responses to audit office reports can be published so that we can learn and, I hope, not repeat the mistakes.

Lord Murphy of Torfaen: My Lords, it has been a very interesting short debate. I think that it has to be dealt with in the context that this is a temporary arrangement. The issue at the end of the day is that if we have anything like an elaborate panel set up, it will give permanence to this totally unsatisfactory system where a part of our country is run by civil servants who are unaccountable in any way to the electorate.
My experience is that as a Minister you would have in the department a system by which you would consult civil society on various decisions that you have to make anyway—at least there should be consultation. Perhaps there is some method by which that could be made a little bit stronger, so that there is a sounding board for the civil servant. The danger always is that the civil servant will be very reluctant to take a decision that might be controversial but which is necessary. That is worth examining, but in the context that this has to be seen as a highly temporary arrangement. It also highlights how terribly unsatisfactory the whole situation is that we do not have a proper elected Government or Assembly in Northern Ireland.

Viscount Younger of Leckie: My Lords, I am grateful to the noble Lord, Lord Bew, for his thoughtful Amendment 5, and for giving us advance notice of it. I also note the support given to the amendment by the noble Lord, Lord Empey.
I say at the outset that I appreciate the intent—seeking to give Northern Ireland civil servants some further cover. I listened very carefully to the analysis of the noble Lord, Lord Bew, of the status quo, especially on the question of morale: that was very much taken note of. I want to assure the noble Lord that we have considered options for providing support in this way to the Northern Ireland Civil Service, and will keep them under review.
The decision-making provisions in the Bill are needed urgently, and while the case could possibly be made that there would be some merit in having advice from an external body such as an advisory panel, the challenges and time commitment associated with setting one up mean that we have opted to proceed without one at this particular stage. I should say also to the noble Lord that my noble friend Lord Duncan and I have spoken in this Chamber before about the burden on civil servants, and I add my voice to the understanding that has been given today about the genuine burden that falls on the Northern Ireland Civil Service.
The amendment, however, causes problems in terms of how such a panel, if mooted, would be constituted: under what authority; how it would operate; and what would happen if it could not agree a position. I am sure that the House will understand those questions and the difficulties involved, again alongside the need for speed and urgency today. We will continue to consider carefully whether Northern Ireland civil  servants need further support, and, as the noble Lord, Lord Murphy, said, it would have to be temporary. For today I hope that the noble Lord will feel able to withdraw his amendment.
I turn to the second amendment in this group—Amendment 13, tabled by the noble Lord, Lord Empey—which seeks to direct departments to publish their responses to the Northern Ireland Audit Office. As the noble Lord, Lord Duncan, made clear in his opening speech, the Bill and guidance are not a move to direct rule. To include this amendment in the Bill would introduce a level of formality that we believe is not appropriate and runs too close to directing Northern Ireland departments. That goes against the spirit of the guidance, which is intended to assist departments in deciding whether exercising their functions is in the public interest but does not direct them to take specific actions.
We fully recognise the importance of transparency, which is why the guidance published alongside the Bill seeks to build on the arrangements agreed with the Northern Ireland Civil Service as part of the budget. In addition to Northern Ireland Audit Office reports on budgetary matters, this guidance sets out that all reports and the respective departmental responses will be presented to the Assembly and shared with the Secretary of State, who will promptly lay these in Parliament. This effectively makes them available to the public. The Secretary of State will also now be writing to share these with the Northern Ireland political parties to encourage their scrutiny of all Northern Ireland reports and departmental responses.
The noble Lord, Lord Bew, raised the question of QC appointments. The Bill deals with the bodies that are currently considered to be the most pressing cases.  Making the necessary appointments to those bodies is essential to the good governance of vital public bodies in Northern Ireland. The Bill enables the Secretary of State to extend this to other offices by regulation, and we will continue to monitor the situation and assess whether further offices—including QCs—should be included in regulation, which would then be debated by affirmative procedure.
The noble Lord, Lord Empey, raised a point about the RHI inquiry. As the noble Lord says, the inquiry is ongoing, so there is a limit to what I can say on this, as I am sure he will appreciate. However, the House will recall that it agreed legislation earlier this year for external cost-capping regulations to ensure that scheme continuity can be kept. This allows the Northern Ireland department to consult on a way forward to develop options for a longer-term solution.
I hope that this short debate will provide sufficient comfort for the noble Lord, Lord Bew, to withdraw his amendment on the basis that it is already provided for in what we are proposing.

Lord Bew: I am happy to withdraw my amendment.
Amendment 5 withdrawn.
Amendment 6 not moved.

Amendment 7

Moved by Lord Empey
7: Clause 3, page 3, line 7, at end insert—“( ) The guidance must direct the Department of Health in Northern Ireland to take all reasonable action, within the existing legal framework, to prepare to—(a) reduce waiting times and waiting lists for the provision of all health services;(b) improve the timeliness and quality of cancer treatment services, including a new cancer strategy; and(c) implement the recommendations of the Strategy for Suicide Prevention in Northern Ireland (“Protect Life 2”).”

Lord Empey: My Lords, I have raised issues pertaining to health in Northern Ireland before. I think I quoted figures before that show that, out of a population of 1.8 million, we have 280,000 people waiting for their first consultant-led out-patient appointment. Of those, approximately 90,000 are waiting over 12 months. At the end of June this year, a further 83,746 patients were waiting for admission to hospital. Of these, 18,000 had been waiting longer than a year. For performance figures for A&E, sadly we are at the bottom of the table for the whole of the United Kingdom again—not meeting any targets, but in fact at a worse level than any other part of the United Kingdom. Whichever way you look at it, this crisis in health has been building up for some time. Its origins date from before the Executive ended, because the trend had already been established, but it has now accelerated. These figures refer to the summer, and we have not even begun to get into the issue of winter pressures.
I have drawn your Lordships’ attention before to the fact that I believe that the Government should  take control of health back here to Westminster on humanitarian grounds, on a temporary basis. Bear in mind that it happened with welfare reform—the decisions were taken and then the powers were sent back to Stormont. That happened because there was a political disagreement. These figures may mean a lot to somebody or they may mean nothing to anybody, but I can assure Members that what we are seeing here is real harm done to a significant number of people. That is why we really need to take action.
The problem we have at the moment with the absence of a Minister is that nobody can take long-term financial decisions. We are taking decisions within a very short timescale, and anybody who knows anything about health knows that you cannot do that. It requires time and planning and it is very inefficient if it is all done at the very last minute. A Minister could enter the scene and take decisions on even mid-term financial planning. Immediately an Executive is formed it can be taken back to Stormont. Some people say that there is a risk of creeping direct rule. I am not in favour of direct rule; I believe in devolution, but we are dealing with a magnitude of something here. There are 5,600 vacancies. Last week, I visited a hospital. One of the bays in the ward had to be closed because there were not sufficient staff.
This leads me on neatly to Amendment 8, which deals with pay. At the moment, there is nobody to agree even agreed payments. The health service has not had increases; the Police Service of Northern Ireland did not get payments for 2017-18, to say nothing of 2018-19. We are depending on these civil servants, front-line workers in the health service and police to keep us safe yet, as I understand it—I hope I am wrong—there is no mechanism to deliver a pay rise. What would the reaction be if that were happening here? With all the publicity there has been on policing issues, on the Department of Justice, and on the pressures of numbers in prisons, we say: “You are not getting your pay rise”. These are not demands; they are agreed through the proper mechanisms yet they are just lying there.
I appreciate the Minister’s dilemma on this and the political issues surrounding it. However, just like the Hart issue and the pension issue, this is a step above and beyond a simple matter of politics. People’s lives will be blighted by these waiting lists and they are getting longer and longer. I respectfully ask that the Minister recognise the significance of this. I can imagine nobody objecting to having a proper Minister appointed, on a short-term basis, to deal with these matters. I beg to move.

Viscount Younger of Leckie: My Lords, these two amendments in the name of the noble Lord, Lord Empey, seek to direct the Northern Ireland departments regarding health issues and public sector pay. As we have consistently said, the proposed legislation is not a move to direct rule, and decision-making must remain within the remit of Northern Ireland departments. To use this guidance to direct individual decisions would therefore go against this principle.
It is important that senior officers are able to apply the principles in the guidance in determining whether it is in the public interest to exercise functions. I understand the concern to ensure that effective decisions are made on the important issues of health, such as waiting lists, and public sector pay—as the noble Lord, Lord Empey, pointed out. However, as we have heard today, these are certainly not the only important—I stress that word—issues in Northern Ireland. Prioritising certain functions in the guidance could suggest that they should be followed at the expense of others. We are confident that the draft guidance as it stands allows Northern Ireland departments to exercise functions such as those raised in this amendment, although whether and how to exercise functions must remain a matter for Northern Ireland departments.
The Department of Health is already working intensively to respond to increasing demands on the Northern Ireland health service, and will continue to do all it can to uphold its duties in the public interest in this interim period. We of course recognise, however, that there are some decisions not enabled by this Bill. The Bill and guidance simply seek to enable senior officers in Northern Ireland departments to take a limited range of decisions using existing powers where it is in the public interest to do so now rather than wait for Ministers. That is in the context of providing the space and time for political talks to help restore devolved government, an issue that has been much discussed today in the Chamber.
Intervening in individual areas in this manner would be tantamount to direct rule—the noble Lord, Lord Empey, used the expression “potential creeping direct rule”—and would undermine our commitment to devolution and the Belfast agreement. The Prime Minister and the Conservative and Unionist manifesto are crystal clear that we will uphold our obligation to the people of Northern Ireland to ensure that their vital public services are protected. We have always said that we do not rule out further legislative intervention if it is necessary. I realise that my response will disappoint the noble Lord, Lord Empey—he will probably not be too surprised—but on the basis of these points I hope that he will feel able to withdraw his amendment.

Lord Empey: Before the Minister sits down, I want to say that he is not quite clear as to the Government’s exact position. He is saying that senior officers should be able to take certain decisions. Of course, this could be seen as direct rule. Look, folks, this is life—this is people’s lives here. We are not talking about a road junction or something casual. We are talking about people not being treated within any guideline that currently exists on these islands. In other words, these are to be sacrificed because of some political ideal of devolution versus creeping direct rule, or “Who are we going to annoy? We are going to annoy Sinn Féin. We are going to annoy this party or that party”.
Think of the people affected by this. This is not going to go away. It is getting worse. The statistics have been going like this not just recently, but for a long time. The suicide strategy is another one where there is total agreement. It is a big problem back home and  it has not been addressed, yet everybody agrees that it should be addressed. What does it take?
I ask the Minister to clarify what he means. He thinks the guidance will allow officers to take decisions, yet on the other hand they are afraid that this would be seen as creeping direct rule. This is a qualitatively different subject matter, and it is on humanitarian grounds that I put this forward, not on a political platform.

Viscount Brookeborough: It may appear that, because the noble Lord, Lord Empey, is leading this on his own, he may not have support. I think he has support from everybody. I declare an interest in that I have had cancer of the throat. This sort of thing does not just affect the people. It affects their families and dozens of other people; it affects their friends. I feel that it affects their friends and families more because they are so worried that they cannot do anything to help, and yet the state, in the form of the National Health Service, is not helping them. Therefore, I cannot conceive that this is not in the public interest, yet the Minister is almost saying that if a senior civil servant thinks it is in the public interest he may come out in support of it.
The other point is that, on another amendment, on the PSNI, we have just spent five or six hours debating the fact that the primary aim of the Government is to restore the Assembly. Policing is absolutely vital to that, and we cannot see the police force denuded of pay or resources to achieve this end. I am afraid that all afternoon, whenever we have talked about any other part of it, the Government have been saying, “Our primary aim is to restore the Assembly”. We will not restore it without enabling our security forces, the police, to manage the day-to-day situation. The Minister should give a slightly more reassuring answer than, “We’ll post it back and see what they think about it”.

Viscount Younger of Leckie: I hope the noble Viscount does not think I said that. First, I am left in no doubt about the passion of the arguments presented by the noble Lord, Lord Empey, and by the noble Viscount in supporting him. However, I think the Committee will appreciate that there is an extremely difficult line to take. We have said that we do not wish to go down the line, whether it is creeping or not, of direct rule. On the other hand—perhaps this is what I really want to say—the reassurance has to be given from this Dispatch Box that upholding our obligation to the people of Northern Ireland is a high priority, as is ensuring that vital public services are protected. This includes the issues raised on health. We are not afraid to step in, if or when we think it is right, and we have said that we will not rule out further legislative intervention. If that is not clear enough, I have to say that this is very much a subjective decision and constantly under review. I cannot say anything more. Finally, I clarify that the Bill enables the Department of Health to take these decisions, and if the UK Government intervened to step in, it could easily be construed as direct rule. I cannot go any further to clarify that point.

Baroness O'Loan: I do not want to hold the Committee up, but I am having some difficulty. The aim of the legislation is to enable the continuity of the delivery of  services, yet vital services such as our health service do not receive that attention. I do not understand what is covered by the Bill if things such as this are not.

Viscount Younger of Leckie: I hope I have made the point that health is very much a priority. I cannot say anything more. I have also attempted to define the line that we have to take, which is an extremely difficult one in the circumstances that we have been presented with. With that, I hope the noble Lord will agree to withdraw his amendment.

Lord Elton: My attention is not quite as close as it was earlier today and I did not hear my noble friend’s reply on the question of paying the police. Am I confused? I understood that Amendment 8 would enable the payment of the sums due and already agreed. I did not hear his reply to that; he may have given it, but I did not hear it.

Viscount Younger of Leckie: I am not sure I gave it, but in the interests of time, I will look over what I said and write to my noble friend to give a succinct answer.

Lord Hay of Ballyore: My Lords, we have all sympathy with what the noble Lord, Lord Empey, is trying to achieve; when it comes to health, we would all like to see waiting lists reduced in Northern Ireland, and there is cancer care and health as well—there are so many issues within health. This is putting the Minister in an awkward position. I have sympathy with what has been said in the Committee. However, I could also make a strong case for education. If you speak to many principals of schools in Northern Ireland, they will tell you that they are suffering because of the lack of budget and cannot deliver the service they want to deliver. They are even asking parents to pay for some things in their schools. Do we appoint an Education Minister temporarily? Then you will have other departments saying, “I think we need a Minister temporarily”, and you end up with direct rule. Is that what we want?

Lord Alderdice: My Lords, I have listened carefully to what colleagues from Northern Ireland said. I am no particularly strong supporter of the Government but it seems that, in a way, this debate demonstrates a kind of learned helplessness, not just of politicians in Northern Ireland but of the Civil Service. If there is a problem, it is someone else’s responsibility—such as the Government’s—to sort it out. The Bill is clearly handing power back to civil servants in Northern Ireland and saying, “You’re covered for making any kind of reasonable decision; that’s not a legal problem now. And by the way, if the politicians in Northern Ireland would get their act together and go back, that would rather help things as well”.
What I am hearing is people trying to pass it back and say, “Come and sort the whole thing out but, by the way, we know that that will disrupt all kinds of agreements we have reached—the Good Friday agreement and so on”. I say to colleagues, in fairness, what the Government are trying to do is to give people the legal  cover to do what is necessary. That includes senior civil servants in Northern Ireland, who have not covered themselves in glory over the RHI scheme or anything else. This is a chance for them to take responsibility and actually do the governing work that they need to do, and that we all need them to do. To that extent, I hope we can move on with some acceptance of what the Government are trying to do, albeit that it is not as satisfactory as we would all like it to be.

Lord Empey: My Lords, I know the noble Lord, Lord Hay, mentioned education—we could all mention that—but there is a qualitative difference between something affecting life and something affecting bad administration. I need to read Hansard—I am not particularly clear on what the Minister means by his decisions—but I will read it. I assure him that if things continue to deteriorate in that area as they have been, I will certainly be holding his feet to the fire. There will be other opportunities; I am not going to let this drop. Having said that, I beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Amendment 8 not moved.

Amendment 9

Moved by Baroness Smith of Basildon
9: Clause 3, page 3, line 7, at end insert—“( ) The guidance shall provide for senior officials of Northern Ireland Departments to report to the Secretary of State at the end of every six month period, beginning with the day on which this section comes into force, on which recommendations of the Report of the Inquiry into Hyponatremia-related Deaths—(a) have been implemented,(b) are being considered and the process by which they are being considered, or(c) have been rejected and why they have been rejected.”

Baroness Smith of Basildon: My Lords, I rise to move Amendment 9 on the hyponatremia inquiry, which may not be something that is well known to many noble Lords, but I have to tell the House that I have special interest in this issue. As a direct rule Minister in Northern Ireland and Minster for Health, I announced the setting up of this independent public inquiry on 18 November 2004. It was to be chaired by a highly regarded QC, Mr John O’Hara, now Mr Justice O’Hara.
For background information, hyponatremia is a condition where the concentration of sodium in the blood falls below safe levels. It can occur for different reasons: it may be that somebody has been vomiting or has diarrhoea and needs to be rehydrated. In hospital, where patients’ fluids are monitored, it is a preventable condition.
The inquiry was started because five children were identified who had died in hospital. They were Adam Strain, aged four; Claire Roberts, aged nine; Raychel Ferguson, also aged nine; Lucy Crawford, aged just   17 months; and 15 year-old Conor Mitchell. The deaths of Adam and Claire, the events following Lucy’s death, Raychel’s case and the issues presented by Conor’s treatment were all investigated by this inquiry.
Surely, there can be no greater or more painful loss for a family than that of a child. When this happens in hospital and that child was receiving treatment, a fundamental role for any inquiry has to be to understand precisely what happened both before and after, and to give recommendations for future actions to prevent something like that ever happening again. The inquiry, announced in 2004, was originally delayed because of police investigations. For other reasons, the report of inquiry was not published until January this year, nearly 14 years after I initiated it. That report has  96 recommendations. I have just re-read large parts of the report before the debate today, and in places it makes grim and very sad reading.
I want to refer to two key aspects that Mr Justice O’Hara identified, and they will form the background to my explanation for bringing this amendment before us tonight. The first is the number of errors made in treating the children, which, rightly, have been very carefully and painstakingly investigated and recorded. The second is the unacceptable difficulties in getting witnesses to be open and frank. In places, Mr Justice O’Hara refers to what he calls “unsatisfactory evidence”, with an attitude of deceit and defensiveness. He describes this as “frustrating and depressing”. That led to his first recommendation being a “statutory duty of candour”—in other words, a legal duty to tell the truth—and there are 95 other recommendations.
My amendment is about the implementation of those recommendations and to ask what has happened since that report was produced in the absence of a Northern Ireland Assembly, an Executive or Ministers to consider them and take action. Paragraph 1.70 of Mr Justice O’Hara’s report said:
“It is for the Department of Health to take them forward. Many will doubtless require significant detailed consideration to enable implementation. I expect the Department to indicate not only which of my recommendations it accepts but also to make clear how and when implementation is to be achieved. Further and subsequent reports should then be made detailing progress towards implementation with a final published confirmation of same”.
So Mr Justice O’Hara and his team took on this inquiry and made their report with every expectation that it would be properly considered and acted on, and the purpose of my amendment is ensure progress.
In the intervening years since 2004, I would have expected that, as problems were identified, some of those recommendations would already have been evident and acted on, with new systems and practices being put in place, but we just do not know. Also, some recommendations—particularly the statutory duty of candour—require political decisions. Others might need political direction in terms of funding and others will be purely clinical.
Given the difficulties faced in the 14 years before the inquiry was able to complete and publish its investigations, what is needed now is a totally transparent and open process. However, the difficulty is that, because there is no Assembly and no Ministers or Executive, we do not know what progress has been made and  there is no political direction. It seems wrong that a lack of political responsibility in Northern Ireland, with no Ministers and no Assembly, should prevent action, and prevent those concerned—particularly the families of the children I have mentioned—knowing what action is being taken. Even the Lord Chief Justice of Northern Ireland, Sir Declan Morgan, has described the situation as “shocking” and “appalling”. Ideally, local Ministers—I think there is also a role for a Stormont health committee here—should deal with this as a matter of urgency.
Therefore, my amendment provides for the Secretary of State to bring some humanity to this issue and to seek six-monthly reports with updates on progress—the amendment details the kinds of updates that we are seeking—so that the people of Northern Ireland can be confident that there is some political oversight and openness about what happens now. Whatever the political situation in Northern Ireland, this is too important a report to allow it just to fade away.
I am grateful to the noble Lord, Lord Bruce, for his amendment, and I know that he supports my amendment as well. I am also grateful to the Minister for the discussions that he and I have had on this issue. I know that he recognises the importance of and urgency behind it. I have had a letter from him this evening which indicates to me that, in so far as the limitations of this legislation allow, he is looking to see what can be done, and I shall be grateful if he can put that on the record tonight.
This matter is key. The families of these children are desperate to know what is happening and how progress will be made. In asking the Minister to respond and outline the commitments that he has been able to make to me in the letter so that they are on the record, perhaps I may press him a little further. In his letter to me, he says that he will seek that information at regular six-monthly intervals from the Department of Health. What is his expectation of the department’s responding? We need some expectation that it is going to respond and is prepared to do so. I note also that the Permanent Secretary of the Department of Health, Richard Pengelly, is prepared to meet with the noble Lord, Lord Bruce, and myself to discuss the issue. I hope the Minister can endorse the comments in his letter and explain what this House would expect. It is difficult—we understand that the Government do not want to have direct rule creep towards it, as it were—but unless there is some political responsibility, who else do the families have to turn to in order to see that justice is done and this report’s recommendations are seriously considered and implemented? I beg to move.

Lord Bruce of Bennachie: My Lords, I am very grateful to the noble Baroness, Lady Smith, who brings her first-hand experience to this amendment, which I have also tabled, and has given us in detail the history of this very sad set of circumstances involving children who appear to have died in circumstances of negligence within the health service. The fact that it took so many years is in itself a problem, but I do not need to reiterate what has been said.
I noted that on Friday the Lord Chief Justice  of Northern Ireland, Sir Declan Morgan, said that  it was “shocking” and “appalling” that the inquiry  recommendations could be fully implemented because of the lack of an Executive in Northern Ireland. In particular, legislation is needed to introduce a legally enforceable duty of candour—a key recommendation of the inquiry. In light of our debates, I wonder how many times politicians in this House or in Northern Ireland are going to be saying to the public in Northern Ireland, their constituents and voters,“We can’t do anything because we don’t have an Executive”, and at what point the people themselves will say, “When on earth are you going to do something for us?”. They are living in a democratic and political vacuum, with no time limit. I take the point about direct rule, but it is heartless to say to people that we had an inquiry, we got recommendations, but because of political incompetence—the mildest way you could describe it—there is nothing we can do. I hope that the Minister can give some reassurance that this vacuum can be at least partially filled.

Viscount Younger of Leckie: My Lords, when I knew I was going to give some relief to my noble friend Lord Duncan in responding, I wanted to look up what hyponatremia actually means, and what happens to your body when it is low on sodium. I wanted to add a little to what the noble Baroness, Lady Smith, said. Low blood sodium hyponatremia occurs when you have an abnormally low amount of sodium in your blood, or when you have too much water in your blood. Signs and symptoms of hyponatremia can include altered personality, lethargy and confusion. Severe hyponatremia can cause seizures, coma and even death—so I am left in no doubt about the seriousness of this particular matter.
Amendment 9 in the name of the noble Baroness, Lady Smith, and Amendment 12 in the name of the noble Lord, Lord Bruce, provide that the guidance should require Northern Ireland departments to update the Secretary of State to implement the recommendation of an important inquiry into hyponatremia that reported earlier this year. As has been said, the proposed legislation is not a move to direct rule. Northern Ireland departments are not subject to the direction and control of the Secretary of State. As a consequence, to have this requirement on the Northern Ireland Department of Health to report to the Government in such a way on the face of the Bill is not consistent with the aim and intention of the guidance, which is to provide guidance as to the exercise of functions in the public interest, not to direct specific action. To use this guidance to direct individual decisions or to seek to introduce formal reporting mechanisms would therefore go against this principle.
However, I am sympathetic to the noble Baroness’s desire to see progress on this matter. We have therefore sought an update from the Northern Ireland Department of Health and have been assured that a team was established in June to consider options for implementation of the inquiry’s recommendations. A meeting has already been scheduled for that team, led by the Deputy Chief Medical Officer, to brief Justice O’Hara QC at the  end of November on progress, and I intend that the Government should write to the Northern Ireland  Department of Health to seek an update following that meeting on implementation of the inquiry’s recommendations. We will ensure that this update can be made public and will request further updates on a six-monthly basis.
To take the matter further with the noble Baroness, Lady Smith, the Department of Health Northern Ireland has said that it will respond. The letter, which I believe she has received, commits that we will write to the Department of Health Northern Ireland, asking for an update on the recommendations in the manner proposed by the noble Baroness’s amendment. We shall share those updates publicly. On the basis that work is ongoing and with the reassurances we have given that regular updates will be provided, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Smith of Basildon: I am grateful to the noble Viscount. I was rather surprised that he answered; I had expected the noble Lord, Lord Duncan, to respond as the letter is from him. Could I have one clarification? In the letter to me from the noble Lord, Lord Duncan, he said that he would be writing personally. The noble Viscount, Lord Younger of Leckie, said that the Government will write. This has to be done at ministerial, not official, level. Will he confirm that to me?

Viscount Younger of Leckie: I can give a complete reassurance to the noble Baroness on that basis. It might be a good idea if I can commit that my noble friend Lord Duncan will write to her. I will also put my name on that letter.

Baroness Smith of Basildon: No, the noble Lord, Lord Duncan, has already written to me and I am happy with the letter he sent. I want to confirm that the letter to the Department of Health in which the noble Lord, Lord Duncan, will seek at six-monthly intervals to get an update, which the Minister has said the Department of Health will respond to, will be a letter from a Minister, not an official.

Lord Duncan of Springbank: I was having a bit of a breather, but I am very happy to confirm that. It is important that we do this—absolutely essential.

Baroness Smith of Basildon: I am grateful to the noble Lord. I understand and appreciate the time that he has invested in this. He has been very generous with his time and his views. On that basis, I beg leave to withdraw the amendment.
Amendment 9 withdrawn.

Amendment 10

Moved by Lord Adonis
10: Clause 3, page 3, line 7, at end insert—“( ) The guidance may direct departments after 1 May 2019 not to enforce sections 58 and 59 of the Offences Against the Person Act 1861.”

Lord Adonis: My Lords, in moving Amendment 10 I shall speak also to Amendment 11. The intent of these amendments, although they had to be drafted in a more complex way, is very simple: if the Northern Ireland Assembly has not legislated for equal marriage and abortion rights in Northern Ireland by next May, equal marriage and abortion should, by the authority of this Parliament, be made legal in Northern Ireland next May.
I do not intend at this late hour to press this matter to a vote, but my first comment is that I believe, based on the balance of parliamentary opinion in this House and the other House, that if the Northern Ireland Assembly does not move to address these basic issues of civil rights over the next year or so, Parliament will be left with little choice but to act in this manner. Particularly on the basis of the vote held in the House of Commons last week, where there was a majority  of 100 in favour of Stella Creasy’s amendment, the intent of which was clearly that abortion and equal marriage should be legalised, although it is not possible to do it through this Bill, I believe that it is the very clear view of the House of Commons that it would move pretty swiftly in that direction if the Northern Ireland Assembly does not.
Clearly, this needs to be reconciled, if possible, with devolution. The right way to do that is to give the opportunity for a new Executive to be formed in Northern Ireland and for the Northern Ireland Assembly to consider this issue, in the expectation that Northern Ireland will not remain the only part of the British Isles where equal marriage and abortion rights are not recognised. It is my belief, however—and I can only express my view—that if the Northern Ireland Assembly is not prepared to act in that regard, the Parliament of the United Kingdom will be obliged to do so in due course. Sending that message out from this House is quite an important signal to politicians in Northern Ireland that there is really not an option for Northern Ireland to continue for any long period of time to deny what many of us would regard as fundamental human rights.

Lord Trimble: I have a simple point. I am sorry to repeat myself from earlier on today, but abortion is legal in Northern Ireland. There is only one small point of difference in the law between Northern Ireland and England and Wales. Therefore, to talk about denial or otherwise is wrong: it is not a matter of law. The problems lie elsewhere.

Lord Adonis: My Lords, your Lordships will be very open to different ways of resolving this issue, but it is a fact at the moment that some 28 women a week travel from Northern Ireland to Great Britain for the purpose of having an abortion, because it is not possible to access these services in Northern Ireland. So whether it is theoretically legal or not, women in Northern Ireland are not able to access these services at the moment, so to all intents and purposes abortion is not available to them.

Lord Trimble: That is a different matter.

Lord Adonis: It is not a different matter in terms of the impact on the women affected. This is surely the fundamental issue.

Lord Trimble: The solution must be in Northern Ireland.

Lord Adonis: I am entirely open to the solutions being found in Northern Ireland, but if those solutions are not found, the only course open to this Parliament is to change the law. The reason that I speak in such direct terms is that it is very important to be able to offer assurances to the people of Northern Ireland themselves that this Parliament is not prepared to allow this abuse of civil rights to continue for any substantial further period. That appears to be in line with majority opinion in Northern Ireland itself. An Amnesty International poll taken earlier this year showed that 65% of people in Northern Ireland think that abortion should be decriminalised and 66% think that Westminster should act in the absence of the Assembly.

Baroness O'Loan: Is the noble Lord aware that Amnesty is promoting abortion in Northern Ireland, hence the results?

Lord Adonis: My Lords, that in no way invalidates the findings. Those figures are from a poll; they do not represent Amnesty’s own view. A Sky News poll earlier this year found that 76% of people in Northern Ireland support an equal marriage law, and also wish this Parliament to carry such a law if it is not carried in Northern Ireland. I state all this because this is the situation as I see it. My own view is that we are not standing by the people of Northern Ireland in guaranteeing these basic rights at the moment. If I was the responsible Minister, I would think very seriously about seeking to change the law now, but, because of the great respect that I have for the devolution settlement and the Good Friday agreement, it is right that we should allow one last opportunity for the devolved institutions of Northern Ireland to resolve these issues of fundamental rights. If they are unable to resolve them, I do not believe that there is any realistic alternative to this Parliament doing so at some early date.

Lord Alton of Liverpool: I do not know whether the noble Lord was present earlier to hear the noble Baroness, Lady Stroud, challenge the poll to which he referred. I draw his attention to the ComRes poll that was carried out only last week in Northern Ireland. It found that 64% of the general population and 66% of women in Northern Ireland agreed that changing the law on this issue should be a decision for the people of Northern Ireland and their elected representatives. It also found that 70% of 18 to 30 year-olds agreed that Westminster should not dictate that change to them.

Baroness Barker: Will the noble Lord, Lord Alton, say who commissioned the poll from ComRes and make available the questions so that the House can see them?

Viscount Younger of Leckie: My Lords, for clarity, we should allow the noble Lord, Lord Adonis, to finish his speech. There have been a number of interventions and I am sure other Peers will have a chance to intervene afterwards.

Lord Adonis: My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.

Lord Mackay of Clashfern: My Lords, my Amendment 16 has the honour to be joined to the  two amendments of the noble Lord, Lord Adonis, Amendments 10 and 11. It seems to me that Amendment 10 breaches a fundamental aspect of the constitution, namely that it is not right for anyone not connected with the prosecution to intervene to alter or to direct a prosecution decision. That is what Amendment 10 does. Amendment 11 again breaches the constitutional rule that our judiciary is not to be directed by departmental guidance. The Secretary of State for Northern Ireland has no authority whatever to direct the prosecuting authorities in Northern Ireland not to prosecute existing statutory provisions there, and certainly no authority to order the judiciary in Northern Ireland not to obey a part of the rule that is there already.
Amendment 16, which was passed in the House of Commons, is intended to deal with both matters as the noble Lord, Lord Adonis, has explained them. It seeks to get the Secretary of State to issue guidance, which will have effect as they wish, but the amendment is so drawn that it does not specify that the guidance has to be of a particular kind. It is obvious from the way it was introduced in the Commons that that is what  they would like to see, but the amendment does not require the Secretary of State to do anything that is unconstitutional or wrong. That is why, as far as I am concerned, I shall not press the amendment. It is a matter that was decided on a free vote, on the issue of abortion—which is always subject to a free vote in both Houses of Parliament—and therefore I shall not press it to a Division. However, I thought it might be necessary to have further discussion on it. Having regard to the amount of discussion that took place at  Second Reading, it may not be necessary to do more than introduce it and see whether anybody wants to speak.
As for the first two amendments, in the name of the noble Lord, Lord Adonis, these are quite unconstitutional. Indeed, the first, on interference in a prosecution, was a constitutional disaster in, I think, the 1920s, and as a result the constitution of the United Kingdom has not had the law officers be part of the Cabinet ever since. Decisions about prosecution are not Cabinet decisions; they are the responsibility of the law officers. In Northern Ireland, in the present situation, the Director of Public Prosecutions is the authority. Nobody has authority under our constitution to tell him what to do in relation to an existing law. The amendment is framed on the basis that this is still an existing law not to be enforced by the department. That is a completely unlawful order. The Secretary of State would be quite wrong to give guidance on that aspect in Amendment 10, and in relation to the judiciary in Amendment 11.
Amendment 16, which I have tabled, is the way that the House of Commons decided to deal with this same matter, which the noble Lord, Lord Adonis, will improve on with his amendments. The Commons agreed the amendment by a majority of about 100. As far as I am concerned, it can stand, because it does not direct the Secretary of State to do anything unlawful. It obviously hopes that the Secretary of State may manage to do something that the Commons had not quite thought of how to do itself. Anyway, that is the way it is. There is no attempt in Clause 4, as it is now as part of the Bill, to direct the Secretary of State to do anything that is necessarily unlawful.

Baroness O'Loan: My Lords, I put my name to Amendment 16. I should like to speak to it and, briefly, to Amendments 10 and 11.
I have no doubt that the ultimate purpose of Clause 4 and Amendments 10 and 11 is to change Northern Ireland and United Kingdom law by decriminalising abortion. This would mean that abortion would cease to be illegal in all circumstances. That means that any baby, at any stage of gestation, right up to birth, could be aborted. No human right exists to do that. I think noble Lords would wish to accept that that, at least, is true. There is no human right to abort babies as described. To decriminalise abortion would be, to my mind, the act of an uncivilised society.
We do not have any declaration of incompatibility. If we had such a declaration, it would not change primary legislation, nor would it create an imperative for changing primary legislation. The law is provided for in Section 4 of the Human Rights Act, which says:
“A declaration … does not affect the validity, continuing operation or enforcement of”,
any provision, and,
“is not binding on the parties”,
to the action. The effect of a declaration of incompatibility, which we do not have, would be not to change the law, but to ask the Northern Ireland Assembly to think about changing the law. Having considered a declaration  of incompatibility, were one to exist, the Government would have the option to do nothing. The noble and learned Baroness, Lady Hale, in her Supreme Court judgment, said that Strasbourg would have regarded doing nothing,
“as within the UK’s margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day”.
The Secretary of State is the representative of the UK Executive. She is not the Northern Ireland legislature for any purpose of considering a change in the law. It is not for the Secretary of State to assume the role of the Northern Ireland Assembly to change primary legislation—nor has she indicated any wish to do so—or to issue new guidance pursuant to primary legislation.
Since health and justice are devolved matters, since this Bill does not change the law on abortion in Northern Ireland, and since the courts have no power to change the law in this respect in Northern Ireland and have not done so, the law stands. Since the matters referred to in Clause 4 and Amendments 10 and 11 are matters of law in Northern Ireland, and since only the legislature in Northern Ireland may make law in respect of those matters, it must surely be illogical to ask the Secretary of State to issue guidance, which would be incompatible with that law.
I have nothing more to say on the matter, other than that we need to think very carefully, and that Amendments 10 and 11, as the noble and learned Lord, Lord Mackay, says, direct the Secretary of State to do something that would be unlawful.

Lord Alderdice: My Lords, it may have come to your Lordships’ attention that anybody from this side of the water telling Northern Ireland politicians what to do is likely to bring about exactly the opposite result to the one they want. What is much more likely to affect Northern Ireland politicians is when their own people start to say things to them. On issues such as abortion and divorce, it is very clear that on the island of Ireland the views of the population have changed quite dramatically in a relatively short period. That is why I do not depend on opinion polls, which are notoriously unreliable in all sorts of ways, as has already been pointed out, depending on what questions you ask, in what kind of way, of what group of people at what particular stage. That is why at Second Reading I asked the Minister whether he might give consideration, at an appropriate time, to whether it would be in order under the terms of the Bill, as it has come to us from the other place, for the Secretary of State to consider recommending referendums on these two issues to be carried out with the people of Northern Ireland.
If the people of Northern Ireland said to their elected representatives, “Actually, we have a different view from the one you think we have and things have changed a lot for us in the last little while”, that would be a much more appropriate and effective way of making change, although if the people of Northern Ireland take a different view from that which might be expected, that is an important issue that must also be respected. It is not reasonable or acceptable to say that something is a devolved matter but if you do not make  the decision that the people in London like we will stop it being a devolved matter. That is not a very human rights-based approach to things. But I believe that dramatic changes are taking place in the views of the people of Northern Ireland on many issues and the only way for us to become clear about that is to put it to the people in a clear fashion. I wonder whether the Minister might be able to help us on this, either tonight or in the relatively near future.

Lord Bruce of Bennachie: My Lords, my noble friend Lord Alderdice has made a fairly constructive suggestion, which has already been replicated in the Republic, with quite dramatic results. But my question relates to the amendment in the name of the noble and learned Lord, Lord Mackay. I accept that the law is where it is and that if it is devolved, it is for the Northern Ireland Assembly, which does not exist, to change the law. However, the Supreme Court has already indicated that it questions whether or not the law in Northern Ireland is compatible with the European Convention on Human Rights, and has indicated that if an individual case was brought, it is likely to rule that it is not. In those circumstances, if a ruling was made that said that the law in Northern Ireland is not consistent with the convention, but there is no Assembly and no devolution, what is the mechanism by which the law can be changed to bring it into line with the European convention?
The issue on gay marriage could also move in that direction. It has not yet but given the acceptance of gay marriage more and more widely across the world, it may well become an issue where human rights law says that the right to gay marriage is a human right. If that became the case, somebody would need to change the law to bring it into line with the convention. In the absence of an Assembly—which would have to do it, whether it liked it or not, but is incapacitated because it does not exist—who would do it?

Lord Mackay of Clashfern: My Lords, the answer is that the Human Rights Act makes it absolutely plain that the declaration of incompatibility does not of itself change the law. If the law is to be changed, that has to be done by the appropriate legislature. In this case, because of the devolution, that would be the Assembly in Northern Ireland if it was functioning. Because of the devolution, that is the way it is: it is the Legislative Assembly that has the power to do this. There is no question of the Secretary of State being able to do it by guidance. That is out of the question. The Human Rights Act made that very plain.
There was quite an important discussion on this during the passage of the Human Rights Bill. Some people thought that the courts should be able to overrule existing statutes that were contrary to the human rights convention. But the politicians of that day, including Jack Straw, were very keen on the view that in our constitution Parliament should be supreme and the courts should not be able to overturn Acts of Parliament. That is a matter for Parliament itself. Of course, as I said at Second Reading, the great example of that in our arrangements recently has been the issue of prisoners’ voting rights because it was declared incompatible and yet Parliament decided not to change the law for some considerable number of years.

Lord Shinkwin: My Lords, I shall speak to Amendment 16, in the names of my noble friend Lord Mackay and the noble Baroness, Lady O’Loan. I thank them for tabling the amendment because I have a direct personal interest in it, having been born with a severe disability. My objection to the current Clause 4, which I appreciate was not part of the original Bill, is twofold.
First, I object on the grounds of inequality. As noble Lords will know, I do not take a position on abortion itself, but I most definitely do take a position on disability equality. Though supposedly about advancing human rights, Clause 4 is actually about a hierarchy of human rights. It is, in effect, about denying the right to exist of, and the equality of, human beings diagnosed with a disability before birth, and ensuring that the power—dressed up as rights—of stronger human beings reigns supreme.
A world in which one group’s equality is more important than another’s is not equality; it is inequality. Clause 4, perversely, would achieve the opposite of its presumed purpose: it would entrench inequality. The argument which was advanced forcefully in the other place—that this is somehow about equality—is therefore bogus. The fact is that if Clause 4 becomes law, more human beings with my condition and other disabilities will be aborted. As it stands tonight, Northern Ireland is the safest place in our United Kingdom to be diagnosed with a disability before birth. That will change if Clause 4 is allowed to stand part of the Bill, because the presumed protection against the most lethal form of disability discrimination—death for disability—will be gone, in time.
A quick glance at the Department of Health’s own statistics tells us everything we need to know about what would happen. I wonder, would any noble Lord care to hazard a guess at the trends in disability-related terminations? Only last week noble Lords may have read about the amazing breakthrough in intra-uterine surgery on human beings diagnosed with spina bifida before birth. Indeed, human beings diagnosed with my condition—brittle bones, which put me in hospital for most of my childhood—can now be treated from the moment of birth with medicines such as bisphosphonates, to ameliorate even some of the most severe forms of the condition. Some people with my condition lead perfectly normal lives, to the extent that they can play sport.
Yet the direction of travel is one way, and we are going at a disturbingly faster and faster rate. Despite wonderful medical advances, between 2007 and 2017 the number of terminations on the grounds of disability increased by a massive 63%. In the same 10-year period, terminations for Down’s syndrome increased by 45%, and the figures for the 20 years between 1997 and 2017 are even worse. If you took the disability death toll as the key performance indicator of the success of this measure, we could not get a higher score, for the simple reason that the increase in Down’s syndrome abortions in that 20-year timeframe is 100%. That means that in 2018, in the rest of the UK we can “boast” that 90% of human beings diagnosed with Down’s syndrome before birth never see the light of day. So much for human rights. So much for equality.
If Clause 4 is left in the Bill, the one part of the UK that has done so much to challenge and break down bigotry since the Good Friday agreement will have bigotry foisted upon it under the perverse pretence of advancing human rights. No wonder, as we have heard, that recent polling shows that the people of Northern Ireland are dead against it.
My second objection is that it is not for us to tell the people of Northern Ireland what to do on this most contentious of issues. We should respect the people of Northern Ireland, not belittle them.
I close by asking this question. What is the message that your Lordships’ House will be sending to people born with a disability if we allow Clause 4 to stand part of the Bill? Surely it is this: “We believe that you would be better off dead; we believe it would be better if you had never been born, because of your disability”. So I ask my noble friend the Minister to take this opportunity to reassure me that the Government do not believe that I, as a Member of your Lordships’ House, would be better off dead and indeed that the Government do not believe that disabled human beings like me would be better off never having been born. I also ask my noble friend the Minister to reassure me that the Government will insist on protections, so that that message can never be given in practice by changes to the law and to practice in Northern Ireland.

Lord Morrow: My Lords, I congratulate the noble Lord, Lord Shinkwin, on his excellent speech. I think he has captured it all here this evening, and I put on the record my appreciation of what he said.
I shall speak to Amendments 16, 10 and 11. I begin by responding to the amendments tabled by the noble Lord, Lord Adonis. I shall first touch briefly on the effect of each before reflecting on their immediate implication and then on their broader constitutional consequence. If the departments were advised not to enforce Sections 58 and 59 of the Offences Against the Person Act, it would allow abortion for absolutely any reason up until 28 weeks’ gestation. It would propel Northern Ireland from a place where it has the highest abortion legislation in the British Isles to having the loosest. In supporting this measure, parliamentarians from England, Scotland and Wales would be thrusting on Northern Ireland a far more liberal abortion law than they think appropriate for themselves. There is simply no justification whatever for this approach.
Setting aside the fact that no declaration of incompatibility was made by the Supreme Court in June—and that even if it had been, it would not have changed the law—the only criticism in the obiter comments was in relation to abortion in two very narrow contexts: first, when a baby is so severely disabled that there is a likelihood that it will die in the womb, will not survive birth or will die soon after; and, secondly, when a baby has the misfortune that the father was a rapist. This would not justify anything remotely resembling not enforcing Sections 58 and 59. Indeed, adopting such a course would be diametrically opposed to the statement by the court that Northern Ireland’s abortion law—Sections 58 and 59—is human rights compliant in prohibiting abortion on the basis of severe malformation.
The amendment is also deeply problematic because of the way in which it would expose people to the risk of prosecution. In the first instance, where these amendments would direct departments not to enforce the law, the law would remain in place. The Secretary of State would effectively be directing departments to make people aware that the law would not be enforced by them—which is likely to result in some people feeling more at liberty to break the law. This, however, would not stop private prosecutions. It is not right that we ask the Secretary of State to put officials in a position where they send out messages that are likely to result in some people breaking the law, thinking they will not end up in court when they will. This would be monstrous.
Amendment 11 is also deeply problematic. If the hope is that officials enforce Article 15 of the Matrimonial Causes (Northern Ireland) Order 1978, the amendment is misconceived. That piece of legislation relates to  the conduct of judges, not departmental officials. If the hope is that officials will enforce Article 15 of the order by directing judges, that also will not work because it would contradict the principle that the judiciary is independent and not instructed by the Executive.
There is an even more profound difficulty with both amendments and their attempt to encourage the Executive to dispense with enforcement of the law. In examining them both, one cannot help but think of that very formative period in our history that, arguably, has done more than anything else to give us the constitutional system of government that we enjoy today. The Glorious Revolution was, in part, a response to the tendency of James II to dispense with the enforcement of laws—laws that remain on the statute book. His actions created  a constitutional crisis that provoked the Glorious Revolution.
I know that the parallels are not exact. The noble Lord, Lord Adonis, is not a king: nor does he claim to be. He is raising this as a parliamentarian and suggesting that Parliament takes this step. However, I feel deeply uncomfortable about the idea of Parliament sanctioning one law to undermine another one that remains on the statute book. There is a real sense in which effectively he is asking Parliament for permission to overthrow the sovereignty of Parliament. This request is wrong-headed, and acceding to it would be destructive of our laws.
I support Amendment 16, in the name of the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan. It seems to me that Clause 4 is one of the most problematic provisions in the Bill. Although those who secured the inclusion of Clause 4 believe that Northern Ireland’s abortion law has been declared incompatible with human rights, no such declaration has been made. Even if a declaration of incompatibility had been made, it seems that the champions of Clause 4 have completely misunderstood what it means. When a declaration of incompatibility is made, the law is not changed and does not have to change. This point is made absolutely clear by Section 4(6) of the Human Rights Act 1998. The fact that, constitutionally, a declaration of incompatibility brings with it no imperative for legal change is set out very clearly by the noble and  learned Baroness, Lady Hale, in paragraph 39 of her judgment in the recent Northern Ireland Supreme Court case back in June.
I now turn to examine some of the specific problems with the understanding of how the declaration of incompatibility applies in the context cited by Clause 4. The first specific example of incompatibility is set out in paragraph (a). This statement is problematic for two reasons. First, as I have already noted, no declaration of incompatibility was made; and secondly, again as already noted, the majority of the noble and learned Baroness’s commentary in the Supreme Court judgment also questioned the balance struck by the law in Northern Ireland in two very narrow contexts—foetal abnormality and rape. The commentary did not provide any justification for suggesting a general problem with Sections 58 and 59 of the Offences against the Person Act. Repealing Sections 58 and 59 would result not simply in adjusting the balance of rights in relation to those two specific contexts, but instead would permit abortion on demand for any reason up to 28 weeks’ gestation. The idea that the majority of her commentary suggests a problem with Sections 58 and 59 of the Offences against the Person Act per se is extraordinary. Subsection (1)(b) is equally confusing.
It is plain wrong to suggest that the Supreme  Court has identified any human rights problem with Article 6(6)(e) of the Marriage (Northern Ireland) Order 2003. There is a challenge to that provision before the Northern Ireland Court of Appeal, the case having already been rejected by the High Court. To date, however, the definition of marriage has not been considered by the Supreme Court.
Having considered the immediate problems with both provisions, I now turn to the wider constitutional point. It cannot be right to require the Secretary of State to produce guidance for officials that has the potential to critique or undermine existing legislation. The only guidance that it would be proper for the Secretary of State to provide, mindful of Section 4(6) and Section 6 of the Human Rights Act, is guidance that upholds current primary legislation unless and until it changes. For the Secretary of State to do anything else would undermine the rule of law.
Mindful of this I have asked the Minister for an assurance that any guidance issued under Clause 4 will make plain, first, that even binding declarations of incompatibility do not have the effect of changing the law or of creating a legal imperative requiring the law to be changed in line with Section 4(6) of the Human Rights Act; and secondly, that no convention right can negate contrary to domestic legislative obligations in line with Section 6 of the Human Rights Act. Unless and until such a time as the law is changed, any guidance provided by the Secretary of State must require officials to uphold that law as it stands.

Lord Cashman: My Lords, I speak in favour of the principles outlined by my noble friend Lord Adonis in Amendments 10 and 11, and against Amendment 16. I will be very brief indeed. Basically I am speaking in defence of Clause 4 because I believe that I have listened to a misrepresentation of that clause. For me it is as simple as this: the women of Northern Ireland and the lesbian, gay and bisexual people of Northern  Ireland should be afforded exactly the same rights and opportunities as other citizens across the rest of the United Kingdom, and no one should face discrimination based on where they were born or where they now live. For those reasons, I support my noble friend’s amendments, but particularly Clause 4 as it stands.

Lord Browne of Belmont: My Lords, I have listened very carefully to the wise words spoken by the noble and learned Lord, Lord Mackay, so I very much welcome Amendment 16. I want to say a few words about Clause 4. The architects of Clause 4 in the other place were very clever, and I pay tribute to their ingenuity. The word “functions” is dropped into Clause 4 in an attempt to make it fit, but it is no more than a fig leaf. Clause 4 is not about functions; it is about policy. This is not the appropriate legislative vehicle for this clause, touching as it does on sensitive issues that are highly controversial, particularly in Northern Ireland.
Regardless of our views on abortion and marriage—and there is a divergence of views right across this House—we can surely agree that they are issues deserving of proper attention and debate. A clause of this kind in a Bill of this kind does not provide that opportunity. What we have here, I rather suspect, is an attempt to change the law through guidance. It cannot work—any change would require legislation—but it is seeking to influence key devolved policy matters that should be decided by a Northern Ireland Executive and Assembly. It is proper for those matters to be dealt with by the devolved institutions. Northern Ireland is the most recent part of the UK to vote on abortion law. In 2016 a clear majority of Assembly Members voted to retain the current law. We should be very wary of undermining devolution, or being seen to undermine it. There is a risk that this clause creates a dangerous precedent for interference that could have wider consequences for our constitutional arrangements. Clause 4 is inappropriate, poorly drafted and should have no place in this Bill.

Baroness Barker: The noble Baroness, Lady O’Loan, and the noble Lord, Lord Alton, have repeatedly said that there is no right to abortion, but your Lordships will know that time and again international courts and the UN have agreed that access to abortion is a right under Article 8. There are many rights that are not set out specifically in the convention, but the right to privacy and the right to family life are inextricably linked to control over one’s body and reproductive rights.
Therefore, I ask your Lordships to vote against the amendment of the noble and learned Lord, Lord Mackay, if it is put a vote, which I hope it is not. It inserts a reference to Section 6 of the Human Rights Act, and that is designed to constrain what the Secretary of State for Northern Ireland could include in guidance. That would be most likely used to declare that the current criminalisation of women who end their own pregnancies in Northern Ireland is acceptable under human rights law, because it is as a result of one or more of the provisions of primary legislation and the authority could not have acted differently. Specifically mentioning Section 6 of the Human Rights Act could  require that guidance be issued that knowingly contravenes Article 8 of the European Convention on Human Rights—the right to privacy and family life. There have been many mentions of the court case in June, and we know that there will be a case before the Supreme Court later this year. It is important, therefore, that the guidance issued in Northern Ireland is sufficiently up to date to ensure that the men and women of Northern Ireland do not lose the access to human rights that the rest of us have.
This is a wrecking amendment, it would overturn the decision made by a majority in another place, and I hope therefore that all noble Lords will resist the amendment of the noble and learned Lord this evening.

Baroness Smith of Basildon: My Lords, I had not expected to be on so soon. Many of us in the Labour Party have some form on debating Clause 4. I am nothing if not consistent: I want to keep Clause 4. It is worth reminding ourselves what Clause 4, which was voted into the Bill by a cross-party majority of almost 100 in the House of Commons, says. It came on the back of a decision by the Supreme Court in June that Northern Ireland abortion law was “untenable and intrinsically disproportionate” in relation to rape and incest, which are criminal matters, and fatal foetal abnormality. The House of Commons looked at this issue within the confines and context of the Bill and also at gay marriage, which is possible in the rest of the UK as a result of a law passed in your Lordships’ House.
Noble Lords have rightly said that Clause 4 does not change the law but states that, in the absence of a Northern Ireland Executive to scrutinise the impact of laws on abortion and same-sex marriage in Northern Ireland and, specifically, their incompatibility with the UK’s human rights obligations, the Secretary of State for Northern Ireland is required to provide clear guidance to Northern Ireland civil servants on the operation of these laws, and to update the House each quarter on how she plans to address the laws’ impact on the UK’s human rights obligations. This is exactly what has been agreed by the House of Commons by a large majority.
I understand why the noble and learned Lord, Lord Mackay, and the noble Baroness, Lady O’Loan, have brought forward this amendment. It recognises that the existing law may contravene the European Convention on Human Rights but then says that the Secretary of State can do nothing about it. That does not seem to be a position which your Lordships’ House would want to be in. Like my noble friend Lord Cashman, I understand the sentiments and principles behind the amendment in the name of my noble friend Lord Adonis. We think alike on these issues. I struggle with the concept of issuing guidance to civil servants not to enforce legislation. Guidance is not the way to do it, and that is why the House of Common has taken the approach that it has.
All noble Lords understand that these issues evoke emotional responses. They are difficult, personal issues, which is why this is a matter of conscience and there is a free vote in both Houses of Parliament. The House  of Commons sought a way forward which is both proportionate and within the terms of this legislation. As I said once before within my own party: I urge your Lordships’ House to protect Clause 4.

Lord Duncan of Springbank: My Lords, this has been a thought-provoking, considered contribution to the debate this evening. At the outset, I draw the attention of the Committee back to the functioning and purpose of the Bill itself. The Bill is designed to ensure an opportunity to re-establish a functioning Executive. That is the ambition behind the Bill and its subsequent elements. A functioning Executive would go a long way to addressing the issues which have been raised this evening. We can be fairly clear that this matter most correctly rests with an Assembly in Northern Ireland.
The noble and learned Lord, Lord Mackay, has put forward an amendment and has graciously said that he will not put it to a vote. However, his contribution has allowed an open opportunity to explore each of the elements within the wider debate. The noble and learned Lord has been clear about the constitutionality of the amendments in the name of the noble Lord, Lord Adonis. However, the purpose behind them is understood. He too was seeking to send a message with his amendments this evening. He has done that; we have heard the message.
I also listened very carefully to the impassioned remarks of the noble Lord, Lord Shinkwin; everyone here will have been moved by them and recognised the passion with which they were given. The Government have no intention of undermining or diminishing the position of persons with disabilities. That was never an attempt or an endeavour. This Bill and any guidance it puts forward would not influence Northern Ireland departments to act in any way which is not compliant with Section 75 of the Northern Ireland Act 1998, which includes provisions to ensure equality between people with disabilities and people without disabilities. I recognise, however, exactly the points the noble Lord made, and they are perhaps for us all to reflect upon this evening. This is, as a number of noble Lords have made plain, a matter of conscience, and I have no doubt that many this evening will be considering these elements as they listen to the ongoing remarks.
I am also taken by the ideas put forth by the noble Lord, Lord Alderdice. Two things become clear to me. Public opinion is a curious thing. Sometimes we think that we know what it is, and sometimes we are wrong, but I think he is absolutely correct that there has been an evolution in public opinion within Northern Ireland. Exactly what it is and how it can be determined can be captured in snapshots of opinion polls, which are like the blink of an eye. Sometimes they change, and it is very hard to pin them down. I cannot make any commitment regarding his novel idea of referendums, but I would like to discuss that further. If he is amenable, I would like to sit down in the future to explore that very thing. However, it is of course not for this particular Bill to move that matter forward.

Baroness O'Loan: The noble Lord, Lord O’Shaughnessy, told me that the Government’s position was that there would be no move on abortion by this Parliament as long as the Northern Ireland Assembly was in devolution mode. I do not think it is helpful for the noble Lord to suggest that there be a referendum on abortion in Northern Ireland at this time of night, in this Bill. Even to discuss it, I think, is most unhelpful.

Lord Duncan of Springbank: I hope the noble Baroness will forgive me, but I disagree with her on this. I do not think that, in opening up a discussion with the noble Lord, Lord Alderdice, we are doing anything other than recognising that there are challenges ahead, in respect of which this is but one opportunity to progress. It is not my intention that we will do any more than discuss this; indeed, it is far too great a discussion to have. Equally, this is perhaps not the correct Bill through which to do it, and this is not the right time of day to have such a detailed discussion.
I recognise a number of the points which were made by the noble Lords this evening. I am guided, in truth, by one simple fact. Clause 4 as drafted does not in any way instruct the Secretary of State to issue guidance to civil servants in Northern Ireland to disobey the law. It cannot do that in any way whatever. Given our earlier discussions about the challenges facing the civil service in Northern Ireland, perhaps this would be one burden too far, to try to encourage movement in that direction. Our purpose here is to ensure that, in recognising that Clause 4 came to us with overwhelming cross-party support from the other place, we acknowledge that that came from a democratic House. We must recognise what it represents and understand how best to take it forward. That is exactly what we will do, and we will do so carefully and in a very transparent manner. That is what is required from this particular clause. We will not be issuing guidance that seeks to undermine the letter of the law, in effect usurps it or changes it in any fashion whatever. We cannot and should not do that. I stress again that this is a matter correctly to be taken forward by the democratic Assembly of Northern Ireland.
On those points, my Lords, I hope that you will find it acceptable not to move your amendments to a vote.

Lord Adonis: My Lords, I assure the noble Lord, Lord Morrow, that I have no intention of becoming King James III, and can I assure the noble and learned Lord, Lord Mackay, that I am only too well aware of the defective drafting of Amendments 10 and 11. It was no part of my purpose to abrogate the proper operation of the law. I was simply advised by the Clerks that, because of the limits of the current Bill, it was not possible to have a straightforward proposal in it to legalise abortion and equal marriage, so in order to enable a debate to take place, the amendments were moved in the form that they were. However, I recognise that the noble and learned Lord does not intend to press his amendment, and nor do I intend to press mine. As the Minister rightly said, I was simply seeking to set down a marker for what the Northern Ireland Assembly will need to deliberate on—assuming there is an Assembly. I need to say in conclusion that if there is not a Northern Ireland Assembly within a reasonable   period of time, I do not see how this Parliament can abrogate its responsibility for maintaining fundamental human rights in Northern Ireland.
The suggestion of the noble Lord, Lord Alderdice, of a referendum is an interesting one, which I am glad to hear the Minister say he is prepared to discuss further. After the experience of the last few years, I am not wildly enthusiastic about referendums. I note that the reason why the referendums on equal marriage and abortion needed to take place in the Republic of Ireland was that its own constitutional provisions enabled the constitution to be amended only by means of a referendum. I hope that these matters can be resolved by the Northern Ireland Assembly but if it cannot, a way will need to be found to resolve them. I do not believe that your Lordships’ House or the other place, on the basis of the vote in the House of Commons last week, will be prepared to see the existing law continue for long. On that basis, I beg leave to withdraw my amendment.
Amendment 10 withdrawn.
Amendments 11 to 13A not moved.

Amendment 13B

Moved by Lord Trimble
13B: Clause 3, page 3, line 11, at end insert—“(4A) If the Secretary of State deems it in the public interest for a senior officer of a Northern Ireland department to exercise a function or functions of that department during the period for forming an Executive, the Secretary of State may summon the Northern Ireland Assembly to debate the issue.(4B) A debate under subsection (4A) may not extend beyond four hours.”

Lord Trimble: My Lords, I welcome the opportunity to stand after sitting for so long. Amendment 13B, in my name, is grouped with two amendments in the name of the noble Lord, Lord Adonis, but I see no overlap between the two. The noble Lord’s amendments relate to the early stages of the process, when the Secretary of State has to formulate and issue guidance, whereas I look beyond that to what the operation might be.
From the point when the Assembly collapsed, I turned my mind to ways in which we might get it going again or find some way of substituting, or other ways of carrying out what Northern Ireland needs. I still feel that the suggestion of the Welsh model was quite good, but it became clear that it was far too much for the Northern Ireland Office to digest and that my rather ambitious proposals would not get anywhere. I have therefore gone to the other extreme and drafted something as short and simple as can be, but which would give the opportunity for a significant step forward.
The amendment takes off from the provisions in the Bill whereby senior officials in the Northern Ireland Administration can exercise, if they think it is in the public interest, the powers that they have under the legislation, which goes right back to the 1920 Act. I  took that and added to it a proposal that the Secretary of State may, where she or he is satisfied that it is in the public interest, summon the Northern Ireland Assembly to debate the issues that they have in mind. This is entirely discretionary on the part of the Secretary of State. It does not compel her to take any particular action but gives her the opportunity to bring the Northern Ireland Assembly together to discuss how the powers referred to in this legislation are carried out. That would be beneficial to the Northern Ireland Office and to the Government. They would then have the opportunity to discuss what they are doing, or to see other people discussing what they are doing at some length and, I hope, with some degree of careful examination of the matter. This would improve the quality of what has been done and, as I say, would give the opportunity to move in that way. I will not go into this in detail, but a serious debate by the elected representatives is bound to add something to the quality of the Administration and is worth having.
There is also a political aspect to this, because if we had this implemented—again, it is entirely at the discretion of the Secretary of State; I am not saying that she must do this, and it could be that it is not operated—by bringing the Northern Ireland Assembly together, we would be taking a concrete step towards it coming back as it should. It adds something to the discussions that the Government may be having in trying to persuade the parties to sort out their differences and then return to the Administration. By having it in operation, even if only for a few hours on particular issues, we would make it clear that it is possible that the Assembly can work again, and will work again. Having got that initial first step, it will be easier, I hope, to take other steps beyond that.
This is a very modest amendment and I shall not press it to a vote. It is purely discretionary; nobody is obliged to do anything with regard to it. I shall not spin out the discussion any further. I think the best thing I can do for the House tonight is to sit down and let things take their course. I beg to move.

Lord Alderdice: My Lords, there is one reason why I would support the amendment that the noble Lord, Lord Trimble, has put forward: from the beginning, the element of the Northern Ireland institutions that worked rather well was the Assembly itself. When it came to the Executive functioning, that was much more contentious and difficult, but the Assembly functioned rather well. The idea of finding ways in which the Assembly could start to meet again, to debate issues of some substance that would increase, to some extent, the accountability of the Government side—be it civil servants or others—is a good one. To simply bring the Assembly back together for one occasion to debate a contentious issue would potentially be damaging because the old splits would re-emerge. To come together on a number of occasions to debate issues that are not necessarily of high contention but are nevertheless important seems to me a good idea. Whether one follows the very specific proposal in this amendment, or some of the other ideas that the creative mind of the noble Lord, Lord Trimble, has produced  over the last little while, the principle is important and merits exploration by the Government. To that extent, I support the amendment.

Lord Adonis: My Lords, I have Amendments 14 and 15 in this group. I think the noble Lord, Lord Trimble, undersold his own amendment. It seems to me that he was raising a very important principle: it should be possible for the Assembly to meet in the absence of an Executive. As somebody who looks at this from outside, it has always seemed strange to me that, because of the architecture of the Good Friday agreement, the Assembly cannot meet if it has not sustained an Executive. I do not know whether the noble Lord can tell me if it legally cannot meet. It certainly has not met in the absence of the Executive. It seems, in terms of seeking to engage the elected representatives of Northern Ireland, and encouraging them to create a context in which an Executive can be formed, what the noble Lord has proposed is extremely constructive. The Minister will be able to tell us whether legally it is possible to proceed in the way the noble Lord, Lord Trimble, has proposed. My amendments facilitate a meeting of the Assembly for the specific purpose of discussing Brexit, given that that is one of—not the only, but one of—the most important decisions that will be taken affecting Northern Ireland over the next six months. It seems highly detrimental to the people of Northern Ireland that their voice is not being taken account of in any formal way, apart from the impact that they are able to have through their elected representatives in the House of Commons. If it were possible to bring the Assembly together for the purpose of discussing Brexit in the absence of Ministers, I cannot see any good reason why that should not happen.
I understand the point that the noble Lord, Lord Alderdice, has made, which is that summoning the Assembly purely for the purpose of discussing one issue—a contentious issue—may not be the best way of proceeding. Enabling the Assembly to meet to discuss a wider range of issues and issues of immediate local concern, including many that were raised at Second Reading, such as infrastructure, public services and so on in Northern Ireland, could help to inform the decisions that officials take. That would seem to be an eminently sensible way forward, and it appears to be what the noble Lord, Lord Trimble, has in mind. However, if it were legally possible for the Assembly to meet in the absence of Ministers, I would have thought that that would be an excellent way of proceeding, and my amendments would simply include Brexit among the issues that should be discussed by any such meetings of the Assembly.

Lord Empey: My Lords, there might be a couple of technical issues surrounding this. As I understand it—perhaps the Minister can confirm this—under the current law the first item of business when the Assembly meets is the election of a Speaker. The Assembly would refuse to do that under the current circumstances, so that would have to be addressed.
However, there is a wider point that I want to make. I am sure that the Minister or his predecessors have been saying for more than a year that they are prepared to think outside the box. However, this is a hermetically  sealed box; it has a number of combinations on it  but nobody knows what they are; and it has not been opened in the past year. Not a single idea has  been brought forward. For months the noble Lords, Lord Alderdice and Lord Trimble, have been putting forward options—but they are talking to a brick wall, because the principal holy grail at the moment is, “Don’t upset the Sinners”. As long as that is the driving force, we will never move a yard forward.
So I hope that the Minister will, with the Secretary of State, genuinely be prepared to look outside the box. We will be sitting here having this conversation in several months’ time, and I do not know whether these are the right options but I think that they certainly merit discussion. The Northern Ireland Office has to start thinking outside the box. I understand that the Prime Minister and everybody else is Brexit focused. The noble Lord, Lord Adonis, rightly said that this is the biggest change that has happened to us in the last 20 years and we are out to lunch. Our voice is not being heard, yet the people of Northern Ireland will be the most directly affected. It is barking mad that we are in this position—so let us genuinely think outside the box.
I hope that when he winds up, the Minister will be able to refer back to Amendments 7 and 8, which I spoke to earlier, concerning the circumstances in which our health service and other matters could be addressed in the future. These are all parts of a bigger picture. I just hope that he will persuade his right honourable friend in the other place to start thinking outside the box, because we are trapped, it is wrong that we are trapped and people are hurting. This Parliament has a responsibility towards those people, and we are not doing our duty.

Lord Murphy of Torfaen: My Lords, I think that there is a case for putting this on the table as a matter for discussion in the forthcoming negotiations. Obviously the Good Friday agreement is a structure that means that all sorts of different organisations have to operate at the same time. You have to have an Assembly, an Executive, a north/south ministerial body and a British intergovernmental conference with the Republic of Ireland. However, the noble Lord, Lord Empey, is right: you have to think outside the box. There has to be imagination. The noble Lord, Lord Trimble, has been talking for at least a year about using what could have been the original Welsh model, when the Welsh Assembly was effectively a very large county council. It has changed considerably over the years—in my view, for the better. But that was an opportunity for elected people in Wales to get together. We have just under 100 Members of the legislative Assembly in Northern Ireland. They do not meet formally or informally. This would give them a chance to go to Stormont and talk about issues, and also talk among themselves—to start talking again—because this is all about talking in many ways.
In the late 1990s there was an Assembly before the original Executive was set up. I was the Finance Minister in Northern Ireland and spent at least one or two days  presenting the budget to the Northern Ireland Assembly, because there was no Executive. They then had an opportunity to question me as a Minister about these issues—but why cannot the same happen again? I hope that the Secretary of State and the Minister will also look at the conclusions of the Northern Ireland Select Committee in the other place, which put forward a number of suggestions not unlike the ones noble Lords have put forward in the last few minutes. It is worth thinking about—anything that brings people together is worth thinking about. It would also, as my noble friend Lord Adonis said, provide the opportunity to at least address the most significant issue facing the people of Northern Ireland—other than the restoration of the institutions—which is Brexit, which affects Northern Ireland so uniquely and strongly. It is worth thinking about, and I hope it is on the agenda for the negotiations.

Lord Bruce of Bennachie: Before the Minister replies, may I add that if he is minded to make a constructive response to this, might it involve scrutiny committees meeting again? That is a way of getting people to work together, and within those scrutiny committees could be a Brexit committee. The best way to break the deadlock is to get people used to the idea that they did work together and they could do it again.

Lord Hay of Ballyore: I did not intent to speak on this particular issue, but we are talking about the Assembly meeting to discuss issues. This has already been on the table. All the other parties are keen for the Assembly to meet to discuss Brexit, and there are other serious issues that the Assembly could come together on—public representatives meeting and coming, as far as possible, to a consensus. This has been on the table for some time. All the other parties are happy to move in that direction, at least for the Assembly to meet without an Executive. The only party which has said no to that is Sinn Féin—so anything suggested this evening is already on the table, and it has failed. The noble Lord, Lord Empey, is right—why do we pander to Sinn Féin? We will never achieve what may be achieved in trying to get devolution up and running.
It is important that the Assembly does meet, even without Ministers and an Executive. That would be a start—discussing some major issues that deeply concern the people of Northern Ireland.

Lord Duncan of Springbank: My Lords, in my head I have a New Yorker cartoon of a very elegant gentleman with a cat on the floor next to its litter tray. The gentleman is pointing and saying, “Never think outside the box”.
We do need to think afresh—Amendment 13B from the noble Lord, Lord Trimble, and the other amendments from the noble Lord, Lord Adonis, do have certain impediments. The noble Lord, Lord Empey, referred to the question of the Speaker and the question of cross-party consent being one of those impediments. I do not want to end this evening’s discussion on that negative statement. Let me take away some of the ideas that have been expressed tonight. Let me think and reflect on them in discussion with my right honourable  friend the Secretary of State for Northern Ireland, and let us see if we can live up to that statement of “thinking outside the box”. On that basis, I hope that noble Lords will not press their amendments.

Lord Trimble: I beg leave to withdraw the amendment.
Amendment 13B withdrawn.
Amendment 14 not moved.
Clause 3 agreed.
Amendment 15 not moved.

  
Clause 4: Equal rights for people of Northern Ireland

Amendment 16

Tabled by Lord Mackay of Clashfern
16: Clause 4, page 4, line 4, leave out from “State” to end of line 15 and insert “shall issue guidance to Northern Ireland departments on the exercise of their functions in a manner which is compatible with section 6 of the Human Rights Act 1998”

Lord Mackay of Clashfern: My Lords, I said earlier that I would move this amendment, but since it has been grouped with the amendment in the name of the noble Lord, Lord Adonis, I think we have had plenty of opportunity to discuss it, so I will not move it now.
Amendment 16 not moved.
Clause 4 agreed.
Clauses 5 to 11 agreed.
House resumed.
Bill reported without amendment.

Northern Ireland (Executive Formation and Exercise of Functions) Bill
 - Report

Report received.

Arrangement of Business
 - Announcement

Viscount Younger of Leckie: My Lords, the Public Bill Office will be open to receive amendments during the next half an hour. At the end of that window, the time for the House to resume will be advertised on the annunciator. I should warn noble Lords that in the event that no amendments are tabled, the period between the end of the tabling window and the resumption of the House may be fairly brief. I beg to move that the House do now adjourn during pleasure and in so doing I suggest that the House does not resume before 12.07 am.
Sitting suspended.

Northern Ireland (Executive Formation and Exercise of Functions) Bill
 - Third Reading

Lord Taylor of Holbeach: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Northern Ireland (Executive Formation and Exercise of Functions) Bill, has consented to place her prerogative, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill passed.
House adjourned at 12.09 am.